Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that: (a) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction; (b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date); (c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower; (d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Laws, including the PATRIOT ACT, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree); (e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder; (f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein); (g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and (h) the Administrative Agent shall have received: (i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and (ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documents.
Appears in 4 contracts
Sources: Second Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), Second Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), Second Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Laws, including the PATRIOT ACT, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.282.29, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documents.
Appears in 4 contracts
Sources: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.), First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” one or more Additional Borrowers for purposes of this Agreement by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(ai) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACT, in each case, at least three days Patriot Act no later than five Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on or such information or documents were not previously provided, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date, and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giii) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower and Guarantors unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees (or reconfirms its existing Guarantee) the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(iv) a customary joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints JAMF as a “Borrower Agent” hereunder and under the other Loan Documents, to the extent requested thereby, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority appointment of the jurisdiction of its organization; and
(ii) a certificate Additional Borrower shall be effective upon the effectiveness of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant amendment to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and any applicable Loan Document necessary (in the other Credit Documentsreasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder.
Appears in 4 contracts
Sources: Amendment Agreement (Jamf Holding Corp.), Credit Agreement (Jamf Holding Corp.), Credit Agreement (Juno Topco, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” one or more Additional Borrowers for purposes of this Agreement by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(ai) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACT, in each case, at least three days Patriot Act no later than five (5) Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on or such information or documents were not previously provided, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Security Agreement, including, without limitation, a perfected first priority pledge of the Equity Interests of such Additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date, and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giii) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower and Guarantor unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees (or reconfirms its existing Guarantee) the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(iv) a customary joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints iCIMS as a “Borrower Agent” hereunder and under the other Loan Documents, to the extent requested thereby, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority appointment of the jurisdiction of its organization; and
(ii) a certificate Additional Borrower shall be effective upon the effectiveness of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant amendment to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and any applicable Loan Document necessary (in the other Credit Documentsreasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder.
Appears in 4 contracts
Sources: Assumption Agreement and Amendment No. 2 (iCIMS Holding LLC), Credit Agreement (iCIMS Holding LLC), Assumption Agreement and Amendment No. 1 (iCIMS Holding LLC)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:REPRESENTATIVE AS BORROWERS’ AGENT.
(a) any such Restricted Subsidiary is organized in a Qualified Each Borrower Jurisdiction;
(b) hereby irrevocably designates and appoints the representations Borrowers’ Representative as that Borrower’s agent to obtain loans and warranties advances under the Credit Facilities, the proceeds of which shall be available to each Borrower for those uses set forth herein and in this Agreement. As the disclosed principal for its agent, each other Credit Document Borrower shall be true obligated to the Agents and correct each Lender on account of loans and advances so made as if made directly by the Lenders to that Borrower, notwithstanding the manner by which such loans and advances are recorded on the books and records of the Borrowers’ Representative and of any Borrower. In addition, each Loan Party other than the Borrowers hereby irrevocably designates and appoints the Borrowers’ Representative as that Loan Party’s agent to represent such Loan Party in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Laws, including the PATRIOT ACT, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Loan Documents.
(b) Each Borrower recognizes that credit available to it under the Credit Facilities is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Liabilities of each of the other Borrowers as if the Borrower which is so assuming and agreeing was each of the other Borrowers.
(c) The Borrowers’ Representative shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Borrowers’ Representative has requested a Loan.
(d) The proceeds of each loan and advance provided under the Credit Facilities which is requested by the Borrowers’ Representative shall be deposited into the Operating Account or as otherwise indicated by the Borrowers’ Representative. The Borrowers’ Representative shall cause the transfer of the proceeds thereof to the (those) Borrower(s) on whose behalf such loan and advance was obtained. Neither the Agent nor any Lender shall have any obligation to see to the application of such proceeds.
Appears in 3 contracts
Sources: Loan and Security Agreement (Casual Male Retail Group Inc), Loan and Security Agreement (Casual Male Retail Group Inc), Loan and Security Agreement (Casual Male Retail Group Inc)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, (a) The Company may at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any consolidated Subsidiary of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary Company that is organized in a Qualified Designated Borrower Jurisdiction;
(b) Jurisdiction and that is engaged in a line of business that is substantially similar to those lines of businesses conducted by the representations Company and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects its Subsidiaries on and as of the date of the hereof (an “Applicant Borrower”) as a Designated Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to receive Loans hereunder by delivering to the extent made as Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit E-1 (a specific date, in which case such representation “Designated Borrower Request and warranty shall be true Assumption Agreement”). The parties hereto acknowledge and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of agree that prior to any Applicant Borrower becoming entitled to utilize the date of the Borrower Joinder credit facilities provided for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) herein the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” information, supporting resolutions, incumbency certificates, opinions of counsel and AML Lawsother documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders (or in the case of “know your customer” information, each Lender) in their sole discretion, including, without limitation, with respect to an Applicant Borrower that is organized under the laws of Germany, evidence satisfactory to the Administrative Agent that such Applicant Borrower (i) is an entity incorporated under the laws of the Federal Republic of Germany as a limited liability company (Gesellschaft mit beschränkter Haftung) and (ii) satisfies asset, revenue, and minimum employee tests required under the laws of Germany to permit a U.S. Lender to lend to such Applicant Borrower and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit E-2 (a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof (the “Designated Borrower Effective Date”), whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice, Swing Line Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after the Designated Borrower Effective Date applicable to such Designated Borrower.
(b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature. The Company shall execute a Guaranty in respect of any Designated Borrower prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. Any Designated Borrower that is a Domestic Subsidiary shall execute a Guaranty in respect of the Company’s and any other Designated Borrower’s Obligations hereunder prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. In the case the Company designates a Designated Borrower, the Company and each Designated Borrower that is a Domestic Subsidiary shall execute and deliver to the Administrative Agent a reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of such Person’s Guaranty prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower so designated by the Company.
(c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.16 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the PATRIOT ACTgiving and receipt of notices, in (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each caseBorrower acting singly, at least three days prior shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the date Company in accordance with the terms of such joinder this Agreement shall be deemed to have been delivered to each Designated Borrower.
(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent shall otherwise agreein its sole discretion);, terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
(e) Notwithstanding the foregoing, with respect to any Designated Borrower not organized under the laws of the United States or any State thereof (a “Designated Foreign Borrower”), no Lender shall be required to make Loans to such Restricted Subsidiary Designated Foreign Borrower and no L/C Issuer shall have delivered be required to issue or amend any Letter of Credit for such Designated Foreign Borrower in the Administrative Agent event that the making of such Loans or issuance or amendment of such Letter of Credit would reasonably be expected to (a) breach or violate any internal policy of such Lender or L/C Issuer or any law or regulation to which such Lender or L/C Issuer is subject, or would be upon the making of such Loan or issuance or amendment of such Letter of Credit or (b) result in materially adverse tax consequences to such Lender (any such Lender, a duly authorized“Protesting Lender”); provided that (i) any Protesting Lender, executed and delivered counterpart signature page to a Borrower Joinder;
(f) which is relying solely on such internal policies as the basis for not making Loans or issuing or amending Letters of Credit may do so only if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into internal policies are being applied by such Restricted Subsidiary pursuant Protesting Lender to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder andall similarly situated borrowers seeking loans, regardless letters of whether such Restricted Subsidiary is a Credit Party on the date it becomes credit or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied other extensions of credit from or with respect to such Restricted Subsidiary jurisdiction; and (without giving effect ii) each Protesting Lender shall use reasonable efforts to designate (or identify) a different lending office for funding or booking its Loans to such Designated Foreign Borrower or issuing or amending Letters of Credit for the account of such Designated Foreign Borrower or to assign (or identify for purposes of assignment of) its rights and obligations hereunder to make its Loans to, or issue or amend Letters of Credit for the account of, such Designated Foreign Borrower to another of its offices, branches or affiliates, if, in the good faith judgment of such Protesting Lender, such designation or assignment would permit it to make Loans to such Designated Foreign Borrower or issue or amend Letters of Credit for the account of such Designated Foreign Borrower and would not otherwise be materially disadvantageous to such Protesting Lender, as applicable (and the Company and the relevant Designated Foreign Borrower shall agree to pay all reasonable out-of-pocket costs and expenses incurred by such Lender or L/C Issuer in connection with any grace periods set forth thereinsuch designation or assignment);
. As soon as practicable (gbut in any event not more than five Business Days) after receipt of notice from the Company or the Administrative Agent of the Company’s intent to designate a Designated Foreign Borrower, any Protesting Lender shall have received, to notify the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) Company and the Administrative Agent in writing of its inability to lend to such Designated Foreign Borrower. The Company shall, effective on or before the date that such Designated Foreign Borrower shall have received:
the right to borrow hereunder, either (iA) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 with respect to each of the LendersProtesting Lender, replace such Protesting Lender with Lenders willing (in their sole discretion) to increase their existing Commitments, or other financial institutions willing (in their sole discretion) to become Lenders and extend new commitments, on terms consistent with Section 11.15, or (B) cancel its request to designate such Restricted Subsidiary shall be deemed Designated Foreign Borrower as a Borrower for all purposes under this Agreement and the other Credit Documents“Designated Borrower”.
Appears in 3 contracts
Sources: Credit Agreement, Credit Agreement (McKesson Corp), Credit Agreement (McKesson Corp)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both one or more Additional Borrowers organized in a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” jurisdiction within the U.S. for purposes of this Agreement by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder (an “Election to Participate”) duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act, in each case, at least three days no later than two Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eA) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to Additional Borrower by Section 5.10 or by the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date (provided that such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its sole discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit H-3 (modified to reflect such Additional Borrower); and
(vii) a customary joinder agreement whereby the extent requested therebyAdditional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder; provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 2 contracts
Sources: Credit Agreement (Ping Identity Holding Corp.), Credit Agreement (Roaring Fork Holding, Inc.)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:REPRESENTATIVE AS BORROWERS’ AGENT.
(a) any such Restricted Subsidiary is organized in a Qualified Each Borrower Jurisdiction;
(b) hereby irrevocably designates and appoints the representations Borrowers’ Representative as that Borrower’s agent to obtain loans and warranties advances under the Revolving Credit Facility, the proceeds of which shall be available to each Borrower for those uses set forth herein and in this Agreement. As the disclosed principal for its agent, each other Credit Document Borrower shall be true obligated to the Agents and correct each Revolving Credit Lender on account of loans and advances so made as if made directly by the Revolving Credit Lenders to that Borrower, notwithstanding the manner by which such loans and advances are recorded on the books and records of the Borrowers’ Representative and of any Borrower. In addition, each Loan Party other than the Borrowers hereby irrevocably designates and appoints the Borrowers’ Representative as that Loan Party’s agent to represent such Loan Party in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Laws, including the PATRIOT ACT, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Loan Documents.
(b) Each Borrower recognizes that credit available to it under the Revolving Credit Facility is in excess of and on better terms than it otherwise could obtain on and for its own account and that one of the reasons therefor is its joining in the credit facility contemplated herein with all other Borrowers. Consequently, each Borrower hereby assumes and agrees to discharge all Liabilities of each of the other Borrowers as if the Borrower which is so assuming and agreeing was each of the other Borrowers.
(c) The Borrowers’ Representative shall act as a conduit for each Borrower (including itself, as a “Borrower”) on whose behalf the Borrowers’ Representative has requested a Revolving Credit Loan.
(d) The proceeds of each loan and advance provided under the Revolving Credit Facility which is requested by the Borrowers’ Representative shall be deposited into the Operating Account or as otherwise indicated by the Borrowers’ Representative. The Borrowers’ Representative shall cause the transfer of the proceeds thereof to the (those) Borrower(s) on whose behalf such loan and advance was obtained. Neither the Agent nor any Revolving Credit Lender shall have any obligation to see to the application of such proceeds.
Appears in 2 contracts
Sources: Loan and Security Agreement (Casual Male Retail Group Inc), Loan and Security Agreement (Casual Male Retail Group Inc)
Designation of Borrowers. On or after the Closing Date, the i) The Borrower Representative may, at any time and Agent may from time to timetime designate one or more Additional Borrowers organized or existing under the laws of the United States, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” state thereof or the District of Columbia, for purposes of this Agreement by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(a) written notice (including via email) of election to become an Additional Borrower (an “Election to Participate”) duly executed on behalf of such Domestic Subsidiary and the Borrower Agent (1) in the case of each of D▇▇▇ & Buster’s of California, Inc., a California corporation, D▇▇▇ & Buster’s of New York, Inc., a New York corporation, D▇▇▇ & Buster’s of Illinois, Inc., an Illinois corporation, Tango Acquisition, Inc., a Delaware corporation, Main Event Entertainment, Inc., a Florida corporation and D▇▇▇ & Buster’s I, LP, a Texas limited partnership (collectively, the “Specified Additional Borrower Entities”), at least five (5) Business Days prior to the proposed effectiveness of such election and (2) in the case of any other Domestic Subsidiary, at least ten (10) Business Days prior to the proposed effectiveness of such Restricted Subsidiary is organized election; provided that, promptly upon receipt by the Administrative Agent of an Election to Participate, the Administrative Agent shall post such Election to Participate to the Lenders; provided further that, in a Qualified the case of each of the Specified Additional Borrower JurisdictionEntities, such notices shall be deemed to have been given on the Second Amendment Effective Date;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except solely to the extent made as such Additional Borrower is not already a Loan Party and to the extent required to satisfy the Collateral and Guarantee Requirement, a supplement to the Collateral Agreement, whereby such Additional Borrower shall confirm its Guarantee of a specific datethe Obligations and grant or pledge thereunder, in which case counterparts to the other Collateral Documents (if applicable) and any further documents, financing statements, agreements and instruments that the Administrative Agent may reasonably request to cause such representation Additional Borrower to satisfy the Collateral and warranty shall be true and correct in all material respects on and as of such specific date)Guarantee Requirement;
(c) no Default to the extent reasonably requested by the Administrative Agent, (A) a certificate of a Responsible Officer certifying that such merger or Event consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) are permitted under this Agreement, (B) a customary opinion of Default shall exist counsel to such Additional Borrower and (C) documentation substantially consistent with the documentation delivered on and as the Closing Date pursuant to Section 4.02(b) of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrowerthis Agreement;
(d) a customary joinder agreement in form and substance reasonably satisfactory to the Administrative Agent whereby the Additional Borrower shall become party hereto as a Borrower and appoint D▇▇▇ & Buster’s, Inc. as a “Borrower Agent” hereunder and under the Lenders shall have received other Loan Documents;
(e) all documentation and other information that the Administrative Agent or a Lender has requested in writing respect of the Additional Borrower Representative with (including, if the Additional Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect to any new Borrower at least ten days prior to of the requested date of such joinder that they reasonably determine is Additional Borrower) required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations (including the USA PATRIOT Act and Beneficial Ownership Regulations) that has been reasonably requested in writing by the Administrative Agent or any Lender; and
(f) at the time of and immediately after giving effect to the designation of such Additional Borrower, no Event of Default or Default shall have occurred and be continuing.
ii) After receipt by the Administrative Agent of such deliveries, the appointment of the Additional Borrower shall become effective upon the effectiveness of an amendment to this Agreement and any other applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (each of which shall be posted to the Lenders by the Administrative Agent promptly after the date of effectiveness thereof), including amendments to disambiguate certain uses of the PATRIOT ACTword “Borrower” and related terms hereunder and to provide for provisions allowing the resignation of a Borrower (which shall require, among other things, the appointment of a successor B▇▇▇▇▇▇▇ if there is no other Additional Borrower at such time and the delivery of written notice to each Lender promptly following any such resignation), to allow for the resignation of such Additional Borrowers and to designate D▇▇▇ & Buster’s, Inc. (or any other Additional Borrower designated by the Borrower Agent from time to time) for notices as “Borrower Agent” and other administrative purposes hereunder, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed in form and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel substance reasonably satisfactory to the Administrative Agent; and
(h) . For the Administrative Agent shall have received:
(i) recent corporate authorizations avoidance of doubt and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (notwithstanding anything to the extent available) contrary herein, in no event shall D▇▇▇ & Buster’s, Inc. be permitted to resign as a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit DocumentsBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.), Credit Agreement (Dave & Buster's Entertainment, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to timetime designate one or more additional borrowers (each, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a an “Additional Borrower” ”) for purposes of this Credit Agreement by delivery delivering to the Administrative Agent Agent: (i) written notice (including via email) of a its election to become an Additional Borrower Joinder duly executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any on behalf of such Restricted Subsidiary is organized in a Qualified and the applicable Borrower Jurisdiction;
not less than fifteen (b15) days prior to the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each effectiveness of such dates election (except to the extent made or such later date as of a specific date, in which case such representation and warranty shall may be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) agreed by the Administrative Agent and the Lenders shall have received Agent); (ii) all documentation and other information that with respect to such Restricted Subsidiary as may be reasonably requested by the Administrative Agent or a or, in the case of any Additional Borrower under any Credit Facility, any Revolving Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days five (5) Business Days prior to the requested date of such joinder effectiveness (or such later date as may be agreed by the Borrower) that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the USA PATRIOT ACTAct and the Beneficial Ownership Regulation, in each case, at least three days no later than two (2) Business Days prior to the date of such joinder effectiveness (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
; (eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Loan Party, all documents, updated schedules, instruments, certificates and agreements (including applicable Loan Documents), and all other actions and information, then required by or in respect of such Additional Borrower by Section 6.12 or by the date it becomes Loan Documents or is to become an additional Borrower pursuant to this Section 2.28any intercreditor agreement (in each case, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods for delivery of such items, the updating of such information or the taking of such actions), including a pledge of 100% of the Equity Interests in such Additional Borrower, (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the Borrower on the Closing Date, and (C) a customary secretary’s certificate attaching such documents as were delivered by the Borrower on the Closing Date; (iv) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Credit Agreement as such, no Default or Event of Default has occurred and is continuing; (v) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth thereinin Exhibit C-1 (modified to reflect such Additional Borrower);
; and (gvi) the Administrative Agent shall have received, to the extent requested thereby, a customary opinions of counsel joinder agreement in form and substance reasonably satisfactory to the Administrative Agent whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Borrower as “Borrower Agent; and” hereunder and under the other Loan Documents. The Obligations of the Borrower and each Additional Borrower shall be joint and several in nature.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Credit Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent shall have received:
(iAgent) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to give effect to the extent available) a certificate appointment of good standing for such Restricted Subsidiary as of a recent date from Additional Borrower (in form and substance reasonably acceptable to the Secretary of State or similar Governmental Authority Administrative Agent, including amendments to disambiguate certain uses of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder word “Borrower” and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentsterms hereunder).
Appears in 2 contracts
Sources: Credit Agreement (TechTarget, Inc.), Credit Agreement (TechTarget Holdings Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both one or more Additional Borrowers organized in a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” jurisdiction within the U.S. for purposes of this Agreement by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder (an “Election to Participate”) duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act, in each case, at least three days no later than two Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) (A) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to Additional Borrower by Section 5.10 or by the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date (provided that such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its sole discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit H-3 (modified to reflect such Additional Borrower); and
(vii) a customary joinder agreement whereby the extent requested therebyAdditional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder; provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, (a) The Company may at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any consolidated Subsidiary of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary Company that is organized in a Qualified Designated Borrower Jurisdiction;
(b) Jurisdiction and that is engaged in a line of business that is substantially similar to those lines of businesses conducted by the representations Company and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects its Subsidiaries on and as of the date of the hereof (an “Applicant Borrower”) as a Designated Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to receive Loans hereunder by delivering to the extent made as Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit E-1 (a specific date, in which case such representation “Designated Borrower Request and warranty shall be true Assumption Agreement”). The parties hereto acknowledge and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of agree that prior to any Applicant Borrower becoming entitled to utilize the date of the Borrower Joinder credit facilities provided for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) herein the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” information, Beneficial Ownership Certification, supporting resolutions, incumbency certificates, opinions of counsel and AML Lawsother documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders (or in the case of “know your customer” information and Beneficial Ownership Certification, each Lender) in their sole discretion, including, without limitation, with respect to an Applicant Borrower that is organized under the laws of Germany, evidence satisfactory to the Administrative Agent that such Applicant Borrower (i) is an entity incorporated under the laws of the Federal Republic of Germany as a limited liability company (Gesellschaft mit beschränkter Haftung) and (ii) satisfies asset, revenue, and minimum employee tests required under the laws of Germany to permit a U.S. Lender to lend to such Applicant Borrower and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit E-2 (a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof (the “Designated Borrower Effective Date”), whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after the Designated Borrower Effective Date applicable to such Designated Borrower.
(b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature. The Company shall execute a Guaranty in respect of any Designated Borrower prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. Any Designated Borrower that is a Domestic Subsidiary shall execute a Guaranty in respect of the Company’s and any other Designated Borrower’s Obligations hereunder prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. In the case the Company designates a Designated Borrower, the Company and each Designated Borrower that is a Domestic Subsidiary shall execute and deliver to the Administrative Agent a reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of such Person’s Guaranty prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower so designated by the Company.
(c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.16 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the PATRIOT ACTgiving and receipt of notices, in (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each caseBorrower acting singly, at least three days prior shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the date Company in accordance with the terms of such joinder this Agreement shall be deemed to have been delivered to each Designated Borrower.
(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent shall otherwise agreein its sole discretion);, terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
(e) Notwithstanding the foregoing, with respect to any Designated Borrower not organized under the laws of the United States or any State thereof (a “Designated Foreign Borrower”), no Lender shall be required to make Loans to such Restricted Subsidiary Designated Foreign Borrower and no L/C Issuer shall have delivered be required to issue or amend any Letter of Credit for such Designated Foreign Borrower in the Administrative Agent event that the making of such Loans or issuance or amendment of such Letter of Credit would reasonably be expected to (a) breach or violate any internal policy of such Lender or L/C Issuer or any law or regulation to which such Lender or L/C Issuer is subject, or would be upon the making of such Loan or issuance or amendment of such Letter of Credit or (b) result in materially adverse tax consequences to such Lender (any such Lender, a duly authorized“Protesting Lender”); provided that (i) any Protesting Lender, executed and delivered counterpart signature page to a Borrower Joinder;
(f) which is relying solely on such internal policies as the basis for not making Loans or issuing or amending Letters of Credit may do so only if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into internal policies are being applied by such Restricted Subsidiary pursuant Protesting Lender to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder andall similarly situated borrowers seeking loans, regardless letters of whether such Restricted Subsidiary is a Credit Party on the date it becomes credit or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied other extensions of credit from or with respect to such Restricted Subsidiary jurisdiction; and (without giving effect ii) each Protesting Lender shall use reasonable efforts to designate (or identify) a different lending office for funding or booking its Loans to such Designated Foreign Borrower or issuing or amending Letters of Credit for the account of such Designated Foreign Borrower or to assign (or identify for purposes of assignment of) its rights and obligations hereunder to make its Loans to, or issue or amend Letters of Credit for the account of, such Designated Foreign Borrower to another of its offices, branches or affiliates, if, in the good faith judgment of such Protesting Lender, such designation or assignment would permit it to make Loans to such Designated Foreign Borrower or issue or amend Letters of Credit for the account of such Designated Foreign Borrower and would not otherwise be materially disadvantageous to such Protesting Lender, as applicable (and the Company and the relevant Designated Foreign Borrower shall agree to pay all reasonable out-of-pocket costs and expenses incurred by such Lender or L/C Issuer in connection with any grace periods set forth thereinsuch designation or assignment);
. As soon as practicable (gbut in any event not more than five Business Days) after receipt of notice from the Company or the Administrative Agent of the Company’s intent to designate a Designated Foreign Borrower, any Protesting Lender shall have received, to notify the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) Company and the Administrative Agent in writing of its inability to lend to such Designated Foreign Borrower. The Company shall, effective on or before the date that such Designated Foreign Borrower shall have received:
the right to borrow hereunder, either (iA) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 with respect to each of the LendersProtesting Lender, replace such Protesting Lender with Lenders willing (in their sole discretion) to increase their existing Commitments, or other financial institutions willing (in their sole discretion) to become Lenders and extend new commitments, on terms consistent with Section 11.15, or (B) cancel its request to designate such Restricted Subsidiary shall be deemed Designated Foreign Borrower as a Borrower for all purposes under this Agreement and the other Credit Documents“Designated Borrower”.
Appears in 1 contract
Sources: Credit Agreement (McKesson Corp)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both one or more Additional Borrowers organized in a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” jurisdiction within the U.S. for purposes of this Agreement by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder (an “Election to Participate”) duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to such Subsidiary (including any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is requisite Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least no later than three days Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent) (which, for the avoidance of doubt, shall be provided to the Agent shall otherwise agreefor further distribution to the Lenders consistent with the mechanics set forth in Section 5.01);
(eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Party, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date (provided that such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its sole discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit H-1 and Exhibit H-2 (modified to reflect such Additional Borrower); and
(vii) a customary opinions of counsel joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder; provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate have been met.
(c) For the avoidance of good standing for such Restricted Subsidiary as of a recent date from doubt, the Secretary of State or similar Governmental Authority obligations of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes any Additional Borrowers under this Agreement and under the other Credit DocumentsLoan Documents are joint and several.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” one or more Additional Borrowers for purposes of this Agreement by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(ai) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACT, in each case, at least three days Patriot Act no later than five Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on or such information or documents were not previously provided, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Security Agreement, including, without limitation, a perfected first priority pledge of the Equity Interests of such Additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date, and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giii) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower and Guarantors unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees (or reconfirms its existing Guarantee) the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(iv) a customary joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, to the extent requested thereby, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority appointment of the jurisdiction of its organization; and
(ii) a certificate Additional Borrower shall be effective upon the effectiveness of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant amendment to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and any applicable Loan Document necessary (in the other Credit Documentsreasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder.
Appears in 1 contract
Designation of Borrowers. On (a) Notwithstanding anything to the contrary set forth herein (including Section 10.07 hereof) or after the Closing Datein any other Loan Document, the Borrower Representative may, at any time and may from time to timetime designate one or more Additional Borrowers organized or existing under the laws of the United States, designate any state thereof or the District of Columbia, for purposes of this Agreement by delivering to the Administrative Agent:
(i) written notice (including via email) of election to become an Additional Borrower duly executed on behalf of the Borrower and the applicable Subsidiary of the Borrower making such election to become an Additional Borrower at least fifteen (15) Business Days prior to the proposed effectiveness of such election; provided that, promptly upon receipt by the Administrative Agent of such written notice, the Administrative Agent shall post such written notice to the Lenders;
(ii) a supplement to the applicable Collateral Documents in form and substance reasonably satisfactory to the Administrative Agent, whereby such Additional Borrower shall confirm its Guaranty of the Obligations and grant or pledge thereunder and any further documents, financing statements, agreements and instruments that is both the Administrative Agent may reasonably request to cause such Additional Borrower to satisfy the Collateral and Guarantee Requirement;
(iii) (A) a wholly owned Subsidiary certificate of a Responsible Officer certifying that such designation and such joinders and supplements to this Agreement or any Loan Document (as applicable) are permitted under this Agreement, (B) legal opinions of counsel to such Additional Borrower including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent and (C) to the extent requested by the Administrative Agent, documentation substantially consistent with the documentation delivered on the Second Restatement Effective Date pursuant to Section 4.01 of this Agreement;
(iv) a Restricted Subsidiary as a “Borrower” by delivery customary joinder agreement in form and substance reasonably satisfactory to the Administrative Agent of whereby the Additional Borrower shall become party hereto as a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(dA) a supplement to the Guaranty (in form and substance reasonably satisfactory to the Administrative Agent) duly executed and delivered by each Guarantor (including Playa Resorts Holding B.V.), reaffirming its Guaranty of the Obligations (including the Additional Borrower’s obligations under this Agreement) and (B) a supplement to the applicable Collateral Documents (in form and substance reasonably satisfactory to the Administrative Agent and the Lenders Mexican Collateral Agent), duly executed and delivered by each Loan Party (including Playa Resorts Holding B.V.) confirming its grant or pledge thereunder;
(vii) if requested by the Administrative Agent and/or the Mexican Collateral Agent, an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) in form and substance reasonably satisfactory to the Administrative Agent and the Mexican Collateral Agent, duly executed and delivered by each mortgagor of a Mortgaged Property confirming that its obligations thereunder shall have received apply to the Additional Borrower’s obligations under this Agreement;
(viii) all documentation and other information that the Administrative Agent or a Lender has requested in writing respect of the Additional Borrower Representative with (including, if the Additional Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect to any new Borrower at least ten days prior to of the requested date of such joinder that they reasonably determine is Additional Borrower) required by regulatory authorities under applicable “know your customer” and AML Laws, anti-money laundering rules and regulations (including the USA PATRIOT ACT, Act and Beneficial Ownership Regulations) that has been reasonably requested in each case, at least three days prior to the date of such joinder (or such shorter period as writing by the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative AgentLender; and
(hix) at the Administrative Agent time of and immediately after giving effect to the designation of such Additional Borrower, no Event of Default or Default shall have received:
(i) recent corporate authorizations occurred and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentscontinuing.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the (a) The Parent Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is one or more Additional Borrowers organized in a Qualified Borrower Jurisdiction;Jurisdiction for purposes of this Agreement by delivering to the Administrative Agent:
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects written notice (including via email) of election to become an Additional Borrower duly executed on and as behalf of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional and the Parent Borrower with at least five (5) Business Days (or such shorter period as agreed by the same effect as though made on and as of each Administrative Agent) prior to the proposed effectiveness of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);election,
(ci) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation, the PATRIOT ACTUSA Patriot Act and a beneficial ownership certificate to the extent required under 31 C.F.R. §1010.230, in each caseno later than three (3) Business Days (or, at least three days solely with respect to Foreign Borrowers, such longer period as may be required by the Administrative Agent and the Lenders to comply with this clause (ii)) prior to the date of the proposed effectiveness of such joinder election (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent));
(eii) (A) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes by Section 6.10 or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to by the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Guarantee Requirement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) customary legal opinions, (C) a customary secretary’s certificate attaching such equivalent documents as were delivered by the original Borrower on the Effective Date or as otherwise is customary in such jurisdiction in the event of any Foreign Borrower and (D) delivery of certificates, if any, representing the pledged equity referred to therein accompanied by undated stock or comparable powers executed in blank and instruments, if any, evidencing the pledged debt indorsed in blank, if applicable;
(giii) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guaranty of the Borrowers’ obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ guarantee of the initial Borrower’s obligations hereunder;
(iv) a certificate of a Responsible Officer of the Parent Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Event of Default has occurred and is continuing;
(v) a customary opinions joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Parent Borrower as a “Borrower Agent” (including with respect to service of counsel process in the case of any Foreign Borrower) hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hc) After such deliveries, the appointment of the Additional Borrower shall be effective subject to the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder and other revisions; provided that, (i) for the avoidance of doubt, so long as such appointment does not result in any material adverse tax consequence or material additional expense to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower that is organized in a Qualified Jurisdiction and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 1.13(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
have been met and (ii) upon the effectiveness of any such amendment, such Additional Borrower shall be jointly and severally obligated as a certificate of an authorized signatory of such Restricted Subsidiary certifying primary obligor as to the copies of the foregoing documents provided by it. Upon receipt thereof Obligations to the Administrative Agent shall promptly transmit such and each of the holders of the Obligations in full when due; provided, to the extent it would be illegal or otherwise unlawful for any Lender to maintain or fund Loans to any Additional Borrower Joinder and organized in a jurisdiction other than the related documents delivered United States that is appointed pursuant to this Section 2.29 Section, such Lender shall have no obligation to each of the Lenders, and maintain or fund such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit DocumentsLoans hereunder.
Appears in 1 contract
Sources: Credit Agreement (SailPoint, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both one or more Additional Borrowers organized in a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” jurisdiction within the U.S. for purposes of this Agreement by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder (an “Election to Participate”) duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to such Subsidiary (including any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is requisite Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least three days no later than two Business Days prior to the date of such joinder effectiveness (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Party, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) if reasonably requested by the Administrative Agent, a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date (provided that (x) if such Additional Borrower is organized in a jurisdiction where legal opinions are not customarily required by a borrower’s legal counsel, no such legal opinion shall be required, and (y) any such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its reasonable discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit H (modified to reflect such Additional Borrower); and
(vii) a customary opinions of counsel joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder; provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Allvue Systems Holdings, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Parent Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is one or more Additional Borrowers organized in a Qualified Borrower Jurisdiction;Jurisdiction for purposes of this Agreement by delivering to the Administrative Agent:
(bi) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects written notice (including via email) of election to become an Additional Borrower duly executed on and as behalf of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional and the Parent Borrower with at least five (5) Business Days (or such shorter period as agreed by the same effect as though made on and as of each Administrative Agent) prior to the proposed effectiveness of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);election,
(cii) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation, the PATRIOT ACTUSA Patriot Act and a beneficial ownership certificate to the extent required under 31 C.F.R. §1010.230, in each caseno later than three (3) Business Days (or, at least three days solely with respect to Foreign Borrowers, such longer period as may be required by the Administrative Agent and the Lenders to comply with this clause (ii)) prior to the date of the proposed effectiveness of such joinder election (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent));
(eA) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes by Section 6.10 or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to by the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Guarantee Requirement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) customary legal opinions, (C) a customary secretary’s certificate attaching such equivalent documents as were delivered by the original Borrower on the Acquisition Closing Date or as otherwise is customary in such jurisdiction in the event of any Foreign Borrower and (D) delivery of certificates, if any, representing the pledged equity referred to therein accompanied by undated stock or comparable powers executed in blank and instruments, if any, evidencing the pledged debt indorsed in blank, if applicable;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guaranty of the Borrowers’ obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Parent Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Event of Default has occurred and is continuing;
(vi) a customary opinions joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Parent Borrower as a “Borrower Agent” (including with respect to service of counsel process in the case of any Foreign Borrower) hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective subject to the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder and other revisions; provided that, (i) for the avoidance of doubt, so long as such appointment does not result in any adverse tax consequence to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower that is organized in a Qualified Jurisdiction and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 1.13(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
have been met and (ii) upon the effectiveness of any such amendment, such Additional Borrower shall be jointly and severally obligated as a certificate of an authorized signatory of such Restricted Subsidiary certifying primary obligor as to the copies of the foregoing documents provided by it. Upon receipt thereof Obligations to the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and holders of the other Credit DocumentsObligations in full when due.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, (a) The Company may at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any consolidated Subsidiary of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary Company that is organized in a Qualified Designated Borrower Jurisdiction;
(b) Jurisdiction and that is engaged in a line of business that is substantially similar to those lines of businesses conducted by the representations Company and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects its Subsidiaries on and as of the date of the hereof (an “Applicant Borrower”) as a Designated Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to receive Loans hereunder by delivering to the extent made as Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit E-1 (a specific date, in which case such representation “Designated Borrower Request and warranty shall be true Assumption Agreement”). The parties hereto acknowledge and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of agree that prior to any Applicant Borrower becoming entitled to utilize the date of the Borrower Joinder credit facilities provided for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) herein the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” information, Beneficial Ownership Certification, supporting resolutions, incumbency certificates, opinions of counsel and AML Lawsother documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders (or in the case of “know your customer” information and Beneficial Ownership Certification, each Lender) in their sole discretion, including, without limitation, with respect to an Applicant Borrower that is organized under the laws of Germany, evidence satisfactory to the Administrative Agent that such Applicant Borrower (i) is an entity incorporated under the laws of the Federal Republic of Germany as a limited liability company (Gesellschaft mit beschränkter Haftung) and (ii) satisfies asset, revenue, and minimum employee tests required under the laws of Germany to permit a U.S. Lender to lend to such Applicant Borrower and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit E-2 (a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof (the “Designated Borrower Effective Date”), whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after the Designated Borrower Effective Date applicable to such Designated Borrower.
(b) The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature. The Company shall execute a Guaranty in respect of any Designated Borrower prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. Any Designated Borrower that is a Domestic Subsidiary shall execute a Guaranty in respect of the Company’s and any other Designated ▇▇▇▇▇▇▇▇’s Obligations hereunder prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. In the case the Company designates a Designated Borrower, the Company and each Designated Borrower that is a Domestic Subsidiary shall execute and deliver to the Administrative Agent a reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of such Person’s Guaranty prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower so designated by the Company.
(c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.16 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the PATRIOT ACTgiving and receipt of notices, in (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each caseBorrower acting singly, at least three days prior shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the date Company in accordance with the terms of such joinder this Agreement shall be deemed to have been delivered to each Designated Borrower.
(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent shall otherwise agreein its sole discretion);, terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
(e) Notwithstanding the foregoing, with respect to any Designated Borrower not organized under the laws of the United States or any State thereof (a “Designated Foreign Borrower”), no Lender shall be required to make Loans to such Restricted Subsidiary Designated Foreign Borrower and no L/C Issuer shall have delivered be required to issue or amend any Letter of Credit for such Designated Foreign Borrower in the Administrative Agent event that the making of such Loans or issuance or amendment of such Letter of Credit would reasonably be expected to (a) breach or violate any internal policy of such Lender or L/C Issuer or any law or regulation to which such Lender or L/C Issuer is subject, or would be upon the making of such Loan or issuance or amendment of such Letter of Credit or (b) result in materially adverse tax consequences to such Lender (any such Lender, a duly authorized“Protesting Lender”); provided that (i) any Protesting Lender, executed and delivered counterpart signature page to a Borrower Joinder;
(f) which is relying solely on such internal policies as the basis for not making Loans or issuing or amending Letters of Credit may do so only if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into internal policies are being applied by such Restricted Subsidiary pursuant Protesting Lender to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder andall similarly situated borrowers seeking loans, regardless letters of whether such Restricted Subsidiary is a Credit Party on the date it becomes credit or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied other extensions of credit from or with respect to such Restricted Subsidiary jurisdiction; and (without giving effect ii) each Protesting Lender shall use reasonable efforts to designate (or identify) a different lending office for funding or booking its Loans to such Designated Foreign Borrower or issuing or amending Letters of Credit for the account of such Designated Foreign Borrower or to assign (or identify for purposes of assignment of) its rights and obligations hereunder to make its Loans to, or issue or amend Letters of Credit for the account of, such Designated Foreign Borrower to another of its offices, branches or affiliates, if, in the good faith judgment of such Protesting Lender, such designation or assignment would permit it to make Loans to such Designated Foreign Borrower or issue or amend Letters of Credit for the account of such Designated Foreign Borrower and would not otherwise be materially disadvantageous to such Protesting Lender, as applicable (and the Company and the relevant Designated Foreign Borrower shall agree to pay all reasonable out-of-pocket costs and expenses incurred by such Lender or L/C Issuer in connection with any grace periods set forth thereinsuch designation or assignment);
. As soon as practicable (gbut in any event not more than five Business Days) after receipt of notice from the Company or the Administrative Agent of the Company’s intent to designate a Designated Foreign Borrower, any Protesting Lender shall have received, to notify the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) Company and the Administrative Agent in writing of its inability to lend to such Designated Foreign Borrower. The Company shall, effective on or before the date that such Designated Foreign Borrower shall have received:
the right to borrow hereunder, either (iA) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 with respect to each of the LendersProtesting Lender, replace such Protesting Lender with Lenders willing (in their sole discretion) to increase their existing Commitments, or other financial institutions willing (in their sole discretion) to become Lenders and extend new commitments, on terms consistent with Section 11.15, or (B) cancel its request to designate such Restricted Subsidiary shall be deemed Designated Foreign Borrower as a Borrower for all purposes under this Agreement and the other Credit Documents“Designated Borrower”.
Appears in 1 contract
Sources: Credit Agreement (McKesson Corp)
Designation of Borrowers. On or after the Closing Date, the i) The Borrower Representative may, at any time and may from time to timetime designate one or more Additional Borrowers organized or existing under the laws of the United States, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” state thereof or the District of Columbia, for purposes of this Agreement by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(a) written notice (including via email) of election to become an Additional Borrower (an “Election to Participate”) duly executed on behalf of such Domestic Subsidiary and the Borrower (1) in the case of each of D▇▇▇ & B▇▇▇▇▇’s of California, Inc., a California corporation, D▇▇▇ & Buster’s of New York, Inc., a New York corporation, D▇▇▇ & Buster’s of Illinois, Inc., an Illinois corporation, Tango Acquisition, Inc., a Delaware corporation, Main Event Entertainment, Inc., a Florida corporation and D▇▇▇ & Buster’s I, LP, a Texas limited partnership (collectively, the “Specified Additional Borrower Entities”), at least five (5) Business Days prior to the proposed effectiveness of such election and (2) in the case of any other Domestic Subsidiary, at least ten (10) Business Days prior to the proposed effectiveness of such Restricted Subsidiary is organized election; provided that, promptly upon receipt by the Administrative Agent of an Election to Participate, the Administrative Agent shall post such Election to Participate to the Lenders; provided further that, in a Qualified the case of each of the Specified Additional Borrower JurisdictionEntities, such notices shall be deemed to have been given on the Second Amendment Effective Date;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except solely to the extent made as such Additional Borrower is not already a Loan Party and to the extent required to satisfy the Collateral and Guarantee Requirement, a supplement to the Collateral Agreement, whereby such Additional Borrower shall confirm its Guarantee of a specific datethe Obligations and grant or pledge thereunder, in which case counterparts to the other Collateral Documents (if applicable) and any further documents, financing statements, agreements and instruments that the Administrative Agent may reasonably request to cause such representation Additional Borrower to satisfy the Collateral and warranty shall be true and correct in all material respects on and as of such specific date)Guarantee Requirement;
(c) no Default to the extent reasonably requested by the Administrative Agent, (A) a certificate of a Responsible Officer certifying that such merger or Event consolidation or other transaction and such supplement to this Agreement or any Loan Document (as applicable) are permitted under this Agreement, (B) a customary opinion of Default shall exist counsel to such Additional Borrower and (C) documentation substantially consistent with the documentation delivered on and as the Closing Date pursuant to Section 4.02(b) of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrowerthis Agreement;
(d) a customary joinder agreement in form and substance reasonably satisfactory to the Administrative Agent whereby the Additional Borrower shall become party hereto as a Borrower and appoint D▇▇▇ & Buster’s, Inc. as a “Borrower Agent” hereunder and under the Lenders shall have received other Loan Documents;
(e) all documentation and other information that the Administrative Agent or a Lender has requested in writing respect of the Additional Borrower Representative with (including, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect to any new Borrower at least ten days prior to of the requested date of such joinder that they reasonably determine is Borrower) required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations (including the USA PATRIOT Act and Beneficial Ownership Regulations) that has been reasonably requested in writing by the Administrative Agent or any Lender; and
(f) at the time of and immediately after giving effect to the designation of such Additional Borrower, no Event of Default or Default shall have occurred and be continuing.
ii) After receipt by the Administrative Agent of such deliveries, the appointment of the Additional Borrower shall become effective upon the effectiveness of an amendment to this Agreement and any other applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (each of which shall be posted to the Lenders by the Administrative Agent promptly after the date of effectiveness thereof), including amendments to disambiguate certain uses of the PATRIOT ACTword “Borrower” and related terms hereunder and to provide for provisions allowing the resignation of a Borrower (which shall require, among other things, the appointment of a successor B▇▇▇▇▇▇▇ if there is no other Additional Borrower at such time and the delivery of written notice to each Lender promptly following any such resignation), to allow for the resignation of such Additional Borrowers and to designate D▇▇▇ & Buster’s, Inc. (or any other Additional Borrower designated by the Borrower from time to time) for notices as “Borrower Agent” and other administrative purposes hereunder, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed in form and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel substance reasonably satisfactory to the Administrative Agent; and
(h) . For the Administrative Agent shall have received:
(i) recent corporate authorizations avoidance of doubt and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (notwithstanding anything to the extent available) contrary herein, in no event shall D▇▇▇ & Buster’s, Inc. be permitted to resign as a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit DocumentsBorrower.
Appears in 1 contract
Sources: Credit Agreement (Dave & Buster's Entertainment, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Parent Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is one or more Additional Borrowers organized in a Qualified Borrower Jurisdiction;Jurisdiction for purposes of this Agreement by delivering to the Administrative Agent:
(bi) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects written notice (including via email) of election to become an Additional Borrower duly executed on and as behalf of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional and the Parent Borrower with at least ten (10) Business Days (or such shorter period as agreed by the same effect as though made on and as of each Administrative Agent) prior to the proposed effectiveness of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);election,
(cii) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation, the PATRIOT ACTUSA Patriot Act and a beneficial ownership certificate to the extent required under 31 C.F.R. §1010.230, in each caseno later than three (3) Business Days (or, at least three days solely with respect to Foreign Borrowers, such longer period as may be required by the Administrative Agent and the Lenders to comply with this clause (ii)) prior to the date of the proposed effectiveness of such joinder election (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent));
(eA) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes by Section 6.10 or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to by the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Guarantee Requirement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) customary legal opinions, (C) a customary secretary’s certificate attaching such equivalent documents as were delivered by the original Borrower on the Effective Date or as otherwise is customary in such jurisdiction in the event of any Foreign Borrower and (D) delivery of certificates, if any, representing the pledged equity referred to therein accompanied by undated stock or comparable powers executed in blank and instruments, if any, evidencing the pledged debt indorsed in blank, if applicable;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guaranty of the Borrowers’ obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Parent Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Event of Default has occurred and is continuing;
(vi) a customary opinions joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Parent Borrower as a “Borrower Agent” (including with respect to service of counsel process in the case of any Foreign Borrower) hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective subject to the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder and other revisions; provided that, (i) for the avoidance of doubt, so long as such appointment does not result in any material adverse tax consequence or material additional expense to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower that is organized in a Qualified Jurisdiction and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 1.13(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
have been met and (ii) upon the effectiveness of any such amendment, such Additional Borrower shall be jointly and severally obligated as a certificate of an authorized signatory of such Restricted Subsidiary certifying primary obligor as to the copies of the foregoing documents provided by it. Upon receipt thereof Obligations to the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lendersholders of the Obligations in full when due. Notwithstanding anything to the contrary herein, and such Restricted Subsidiary no Lender shall be deemed a obligated to make any Loans to any Foreign Borrower for all purposes under this Agreement and the other Credit Documentswhere doing so would violate any Laws binding upon such Lender.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the (a) The Parent Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is one or more Additional Borrowers organized in a Qualified Borrower Jurisdiction;Jurisdiction for purposes of this Agreement by delivering to the Administrative Agent:
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects written notice (including via email) of election to become an Additional Borrower duly executed on and as behalf of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional and the Parent Borrower with at least five (5) Business Days (or such shorter period as agreed by the same effect as though made on and as of each Administrative Agent) prior to the proposed effectiveness of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);election,
(ci) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation, the PATRIOT ACTUSA Patriot Act and a beneficial ownership certificate to the extent required under 31 C.F.R. §1010.230, in each caseno later than three (3) Business Days (or, at least three days solely with respect to Foreign Borrowers, such longer period as may be required by the Administrative Agent and the Lenders to comply with this clause (ii)) prior to the date of the proposed effectiveness of such joinder election (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent));
(eii) (A) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes by Section 6.10 or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to by the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Guarantee Requirement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) customary legal opinions, (C) a customary secretary’s certificate attaching such equivalent documents as were delivered by the original Borrower on the Effective Date or as otherwise is customary in such jurisdiction in the event of any Foreign Borrower and (D) delivery of certificates, if any, representing the pledged equity referred to therein accompanied by undated stock or comparable powers executed in blank and instruments, if any, evidencing the pledged debt indorsed in blank, if applicable;
(giii) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guaranty of the Borrowers’ obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally guarantees the Borrowings of each then- existing Borrower on terms substantially consistent with the Guarantors’ guarantee of the initial Borrower’s obligations hereunder;
(iv) a certificate of a Responsible Officer of the Parent Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Event of Default has occurred and is continuing;
(v) a customary opinions joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Parent Borrower as a “Borrower Agent” (including with respect to service of counsel process in the case of any Foreign Borrower) hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hc) After such deliveries, the appointment of the Additional Borrower shall be effective subject to the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder and other revisions; provided that, (i) for the avoidance of doubt, so long as such appointment does not result in any material adverse tax consequence or material additional expense to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower that is organized in a Qualified Jurisdiction and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 1.13(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
have been met and (ii) upon the effectiveness of any such amendment, such Additional Borrower shall be jointly and severally obligated as a certificate of an authorized signatory of such Restricted Subsidiary certifying primary obligor as to the copies of the foregoing documents provided by it. Upon receipt thereof Obligations to the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and holders of the other Credit DocumentsObligations in full when due.
Appears in 1 contract
Sources: Credit Agreement (Nutanix, Inc.)
Designation of Borrowers. On or after the Closing Date, the (a) The Parent Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is one or more Additional Borrowers organized in a Qualified Borrower Jurisdiction;Jurisdiction for purposes of this Agreement by delivering to the Administrative Agent:
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects written notice (including via email) of election to become an Additional Borrower duly executed on and as behalf of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional and the Parent Borrower with at least five (5) Business Days (or such shorter period as agreed by the same effect as though made on and as of each Administrative Agent) prior to the proposed effectiveness of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);election,
(ci) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation, the PATRIOT ACTUSA Patriot Act and a beneficial ownership certificate to the extent required under 31 C.F.R. §1010.230, in each caseno later than three (3) Business Days (or, at least three days solely with respect to Foreign Borrowers, such longer period as may be required by the Administrative Agent and the Lenders to comply with this clause (ii)) prior to the date of the proposed effectiveness of such joinder election (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent));
(eii) (A) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes by Section 6.10 or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to by the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Guarantee Requirement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) customary legal opinions, (C) a customary secretary’s certificate attaching such equivalent documents as were delivered by the original Borrower on the Effective Date or as otherwise is customary in such jurisdiction in the event of any Foreign Borrower and (D) delivery of certificates, if any, representing the pledged equity referred to therein accompanied by undated stock or comparable powers executed in blank and instruments, if any, evidencing the pledged debt indorsed in blank, if applicable;
(giii) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guaranty of the Borrowers’ obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally guarantees the Borrowings of each then- existing Borrower on terms substantially consistent with the Guarantors’ guarantee of the initial Borrower’s obligations hereunder;
(iv) a certificate of a Responsible Officer of the Parent Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Event of Default has occurred and is continuing;
(v) a customary opinions joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Parent Borrower as a “Borrower Agent” (including with respect to service of counsel process in the case of any Foreign Borrower) hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hc) After such deliveries, the appointment of the Additional Borrower shall be effective subject to the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder and other revisions; provided that, (i) for the avoidance of doubt, so long as such appointment does not result in any material adverse tax consequence or material additional expense to any Lender (unless reimbursed hereunder) or to the Administrative Agent (unless reimbursed hereunder), the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower that is organized in a Qualified Jurisdiction and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 1.13(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
have been met and (ii) upon the effectiveness of any such amendment, such Additional Borrower shall be jointly and severally obligated as a certificate of an authorized signatory of such Restricted Subsidiary certifying primary obligor as to the copies of the foregoing documents provided by it. Upon receipt thereof Obligations to the Administrative Agent shall promptly transmit such and each of the holders of the Obligations in full when due; provided, to the extent it would be illegal or otherwise unlawful for any Lender to maintain or fund Loans to any Additional Borrower Joinder and organized in a jurisdiction other than the related documents delivered United States that is appointed pursuant to this Section 2.29 Section, such Lender shall have no obligation to each of the Lenders, and maintain or fund such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit DocumentsLoans hereunder.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to timetime designate one or more Additional Borrowers organized in the United States, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” state or subdivision thereof, for purposes of this Agreement, by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that with respect to such Subsidiary (including any requisite Beneficial Ownership Certification) reasonably requested by the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is and required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least three days no later than two Business Days prior to the date of such joinder effectiveness (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Party, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) if reasonably requested by the Administrative Agent, a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the Borrower on the Closing Date (provided that (x) if such Additional Borrower is organized in a jurisdiction where legal opinions are not customarily provided by a borrower’s legal counsel, no such legal opinion shall be required or such opinion shall be provided by counsel to the Administrative Agent (if customary to do so), and (y) any such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its reasonable discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the Borrower on the Closing Date;
(giv) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel Documentation reasonably satisfactory to the Administrative AgentAgent pursuant to which (i) each then existing Borrower unconditionally Guarantees the Borrowings of Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) solely to the extent such Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantor’s Gurantee of the initial Borrower’s obligations hereunder;
(v) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit H-1 and Exhibit H-2 (modified to reflect such Additional Borrower); and
(hvi) a customary joinder agreement in form and substance reasonably satisfactory to the Administrative Agent whereby the Additional Borrower becomes party hereto as a Borrower.
(b) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent, including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder); provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.23(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and Agent may from time to timetime designate one or more Additional Borrowers organized in the United States, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” state thereof, the District of Columbia, Luxembourg or Jersey, in each case for purposes of this Agreement, by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(ai) any written notice (including via email) of election to become an Additional Borrower duly executed on behalf of such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;and the Borrowers two Business Days prior to the proposed effectiveness of such election,
(bii) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that with respect to such Subsidiary (including any requisite Beneficial Ownership Certification) reasonably requested in writing by the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is and required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least three days no later than two Business Days prior to the date of such joinder effectiveness (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Party, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) if reasonably requested by the Administrative Agent, a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the Initial Borrower on the Closing Date (provided that (x) if such Additional Borrower is organized in a jurisdiction where legal opinions are not customarily provided by a borrower’s legal counsel, no such legal opinion shall be required or such opinion shall be provided by counsel to the Required Lenders (if customary to do so), and (y) any such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its reasonable discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the Initial Borrower on the Closing Date;
(giv) [reserved];
(v) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Administrative Agent shall have received, Note set forth in Exhibit H (modified to the extent requested thereby, reflect such Additional Borrower); and
(vi) a customary opinions of counsel joinder agreement in form and substance reasonably satisfactory to the Administrative Agent; and
Agent whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Initial Borrower (h) the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, or such Restricted Subsidiary, and (to the extent available) a certificate other Subsidiary of good standing for such Restricted Subsidiary Holdings as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a the Borrower for all purposes Agent at such time) as “Borrower Agent” hereunder and under this Agreement and the other Credit Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (Solera Corp.)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and (a) Parent may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary one or more Designated Revolving Borrowers for purposes of this Agreement (subject to the requirements of Section 2.01(c) and a Restricted Subsidiary as a the definition of “Designated Revolving Borrower” ”) by delivery delivering to the Administrative Agent of (i) a Borrower Joinder Agreement in substantially the form attached as Exhibit J hereto (the “Joinder Agreement”), (ii) a Debtor Joinder Agreement with respect to the Intercreditor Agreement duly executed by such Subsidiary, each other Guarantor Subsidiary and the Borrower Representative; provided that:
Representative five (a5) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) Business Days prior to the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each effectiveness of such dates election, (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(ciii) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the USA PATRIOT ACT, in each case, at least three days Act no later than five (5) Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent) and (iv) (A) such documents as set out in Section 4.01(b)(i) as they relate to such Designated Revolving Borrower and (as the Administrative Agent shall otherwise agreecase may be) its shareholders (as if references to certified copy documents are to those documents in sub-paragraph (A) above of this paragraph (iii) and reference to the “Closing Date” being the date on which it becomes a Designated Revolving Borrower hereunder);
; and (eB) such Restricted Subsidiary shall have delivered a legal opinion of local counsel to the Administrative Agent a duly authorized(or if customary in the relevant jurisdiction or otherwise, executed to such Designated Revolving Borrower) relating to such Designated Revolving Borrower and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into covering matters customarily covered by such Restricted Subsidiary pursuant to Section 5.11 as applied to opinion from such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether counsel in the relevant jurisdiction for such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel accession in form and substance reasonably satisfactory to the Administrative Agent; and
and (hC) a copy of each Collateral Document as the Administrative Agent shall have received:may reasonably request (but always in accordance with Section 6.12 and the Guarantee and Security Principles with respect to Foreign Subsidiaries for accession of any Guarantor and (as applicable) substantially on the same terms as Collateral Documents already in existence), in each case executed by such Designated Revolving Borrower.
(ib) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to Parent may terminate the extent available) a certificate status of good standing for such Restricted any Subsidiary as a Designated Revolving Borrower for purpose of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided making further Revolving Credit Borrowings under this Agreement by it. Upon receipt thereof delivering to the Administrative Agent a written notice of election to terminate such status as a Designated Revolving Borrower (an “Election to Terminate”) duly executed on behalf of such Subsidiary and Parent; provided, at the time of such Election to Terminate, such Subsidiary shall promptly transmit have no Revolving Credit Loans, Ancillary Outstandings or L/C Obligations, and no interest, fees or other amounts shall be then due and payable under the Loan Documents by such Borrower Joinder and Subsidiary. After the related documents delivered pursuant delivery of an Election to this Section 2.29 to each Terminate in accordance with the requirements of the Lenders, and preceding sentence such Restricted Subsidiary shall be relieved of its obligations under this Agreement as a Designated Revolving Borrower (other than in respect of unpaid fees and interest accrued on or prior to the date of such termination) and the commitments of the Revolving Credit Lenders to make any Credit Extension or any extension of credit under any Ancillary Facility with respect to such Designated Revolving Borrower shall be irrevocably and permanently terminated, but after the delivery of such Election to Terminate such Subsidiary shall still be deemed to be a Borrower for all purposes Subsidiary Guarantor under this Agreement and the delivery of such an Election to Terminate shall not affect the obligations of any other Credit DocumentsDesignated Revolving Borrower under this Agreement or any other Loan Document or thereafter incurred by any other Designated Revolving Borrower.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, (a) The Company may at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any consolidated Subsidiary of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary Company that is organized in a Qualified Designated Borrower Jurisdiction;
(b) Jurisdiction and that is engaged in a line of business that is substantially similar to those lines of businesses conducted by the representations Company and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects its Subsidiaries on and as of the date of the hereof (an “Applicant Borrower”) as a Designated Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to receive Loans hereunder by delivering to the extent made as Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit E-1 (a specific date, in which case such representation “Designated Borrower Request and warranty shall be true Assumption Agreement”). The parties hereto acknowledge and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of agree that prior to any Applicant Borrower becoming entitled to utilize the date of the Borrower Joinder credit facilities provided for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) herein the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” information, Beneficial Ownership Certification, supporting resolutions, incumbency certificates, opinions of counsel and AML Lawsother documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent, as may be required by the Administrative Agent or the Required Lenders (or in the case of “know your customer” information and Beneficial Ownership Certification, each Lender) in their sole discretion, including, without limitation, with respect to an Applicant Borrower that is organized under the laws of Germany, evidence satisfactory to the Administrative Agent that such Applicant Borrower (i) is an entity incorporated under the laws of the Federal Republic of Germany as a limited liability company (Gesellschaft mit beschränkter Haftung) and (ii) satisfies asset, revenue, and minimum employee tests required under the laws of Germany to permit a U.S. Lender to lend to such Applicant Borrower and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested “know your customer” information, Beneficial Ownership Certification, resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall send a notice in substantially the form of Exhibit E-2 (a “Designated Borrower Notice”) to the Company and the Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof (the “Designated Borrower Effective Date”), whereupon each of the Lenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Designated Borrower otherwise shall be a Borrower for all purposes of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after the Designated Borrower Effective Date applicable to such Designated Borrower.
(b) The Obligations of the Company and, each Designated Borrower that is a Domestic Subsidiary and the Additional Borrower (if applicable) shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature. The Company shall execute a Guaranty in respect of any Designated Borrower prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. Any Designated Borrower that is a Domestic Subsidiary shall execute a Guaranty in respect of the Company’s and, any other Designated ▇▇▇▇▇▇▇▇’s and the Additional Borrower’s (if applicable) Obligations hereunder prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. In the case the Company designates a Designated Borrower, the Company and, each Designated Borrower that is a Domestic Subsidiary and the Additional Borrower (if applicable) shall execute and deliver to the Administrative Agent a reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of such Person’s Guaranty prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower so designated by the Company.
(c) Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.16 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Loan Documents, including (i) the PATRIOT ACTgiving and receipt of notices, in (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each caseBorrower acting singly, at least three days prior shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the date Company in accordance with the terms of such joinder this Agreement shall be deemed to have been delivered to each Designated Borrower.
(d) The Company may from time to time, upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent shall otherwise agreein its sole discretion);, terminate a Designated Borrower’s status as such, provided that there are no outstanding Loans payable by such Designated Borrower, or other amounts payable by such Designated Borrower on account of any Loans made to it, as of the effective date of such termination. The Administrative Agent will promptly notify the Lenders of any such termination of a Designated Borrower’s status.
(e) Notwithstanding the foregoing, with respect to any Designated Borrower not organized under the laws of the United States or any State thereof (a “Designated Foreign Borrower”), no Lender shall be required to make Loans to such Restricted Subsidiary Designated Foreign Borrower and no L/C Issuer shall have delivered be required to issue or amend any Letter of Credit for such Designated Foreign Borrower in the event that the making of such Loans or issuance or amendment of such Letter of Credit would reasonably be expected to (a) breach or violate any internal policy of such Lender or L/C Issuer or any law or regulation to which such Lender or L/C Issuer is subject, or would be upon the making of such Loan or issuance or amendment of such Letter of Credit or (b) result in materially adverse tax consequences to such Lender (any such Lender, a “Protesting Lender”); provided that (i) any Protesting Lender, which is relying solely on such internal policies as the basis for not making Loans or issuing or amending Letters of Credit may do so only if such internal policies are being applied by such Protesting Lender to all similarly situated borrowers seeking loans, letters of credit or other extensions of credit from or with respect to such jurisdiction; and (ii) each Protesting Lender shall use reasonable efforts to designate (or identify) a different lending office for funding or booking its Loans to such Designated Foreign Borrower or issuing or amending Letters of Credit for the account of such Designated Foreign Borrower or to assign (or identify for purposes of assignment of) its rights and obligations hereunder to make its Loans to, or issue or amend Letters of Credit for the account of, such Designated Foreign Borrower to another of its offices, branches or affiliates, if, in the good faith judgment of such Protesting Lender, such designation or assignment would permit it to make Loans to such Designated Foreign Borrower or issue or amend Letters of Credit for the account 50 of such Designated Foreign Borrower and would not otherwise be materially disadvantageous to such Protesting Lender, as applicable (and the Company and the relevant Designated Foreign Borrower shall agree to pay all reasonable out-of-pocket costs and expenses incurred by such Lender or L/C Issuer in connection with any such designation or assignment). As soon as practicable (but in any event not more than five Business Days) after receipt of notice from the Company or the Administrative Agent of the Company’s intent to designate a duly authorizedDesignated Foreign Borrower, executed any Protesting Lender shall notify the Company and delivered counterpart signature page the Administrative Agent in writing of its inability to lend to such Designated Foreign Borrower. The Company shall, effective on or before the date that such Designated Foreign Borrower shall have the right to borrow hereunder, either (A) with respect to each Protesting Lender, replace such Protesting Lender with Lenders willing (in their sole discretion) to increase their existing Commitments, or other financial institutions willing (in their sole discretion) to become Lenders and extend new commitments, on terms consistent with Section 11.15, or (B) cancel its request to designate such Designated Foreign Borrower as a Borrower Joinder;“Designated Borrower”.
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered Notwithstanding anything to the Collateral Agent duly authorizedcontrary set forth in this Agreement, executed each Lender at its option may make any Credit Extension or otherwise perform its obligations hereunder through such Lender’s Lending Office (each, a “Designated Lender”); provided that any exercise of such option shall not affect the obligation of each Borrower to repay any Credit Extension in accordance with the terms of this Agreement. Any Designated Lender shall be considered a Lender; provided that designation of a Designated Lender is for administrative convenience only and delivered copies does not expand the scope of liabilities or obligations of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes Lender or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
(h) the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority Designated Lender beyond those of the jurisdiction of its organization; and
(ii) Lender designating such Person as a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents Designated ▇▇▇▇▇▇ as provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to in this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit DocumentsAgreement.
Appears in 1 contract
Sources: Credit Agreement (McKesson Corp)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and (a) The Borrowers may from time to time, time designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery one or more Additional Borrowers for purposes of this Agreement (which such designated Additional Borrowers shall be reasonably satisfactory to the Administrative Agent of a Borrower Joinder executed Agent), by such Subsidiary, each other Guarantor and delivering to the Borrower Representative; provided thatAdministrative Agent:
(ai) any written notice of election to become an Additional Borrower (an “Election to Participate”) duly executed on behalf of such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;and the Borrowers five Business Days prior to the proposed effectiveness of such election,
(bii) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to such Subsidiary (including any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is requisite Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least three days no later than five Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) (A) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to Additional Borrower by Section 5.10 or by the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrowers on the Closing Date, and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrowers on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrowers’ obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrowers’ obligations hereunder;
(v) a certificate of a Responsible Officer of Borrower Representative stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit ▇-▇, ▇▇▇▇▇▇▇ ▇-▇ and Exhibit H-3 (modified to reflect such Additional Borrower); and
(vii) a customary joinder agreement whereby the extent requested therebyAdditional Borrower becomes party hereto as a Borrower and appoints Borrower Representative as a “Borrower Agent” hereunder and under the other Loan Documents, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority appointment of the jurisdiction of its organization; and
(ii) a certificate Additional Borrower shall be effective upon the effectiveness of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant amendment to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and any applicable Loan Document necessary (in the other Credit Documentsreasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both one or more Additional Borrowers organized in a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” jurisdiction within the U.S. for purposes of this Agreement by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder (an “Election to Participate”) duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to such Subsidiary (including any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is requisite Beneficial Ownership Certification) required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least three days no later than two Business Days prior to the date of such joinder effectiveness (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Party, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) if reasonably requested by the Administrative Agent, a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date (provided that (x) if such Additional Borrower is organized in a jurisdiction where legal opinions are not customarily required by a borrower’s legal counsel, no such legal opinion shall be required, and (y) any such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its reasonable discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have received, pursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) solely to the extent requested therebysuch Additional Borrower is not already a Guarantor, each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit H-1 and Exhibit H-2 (modified to reflect such Additional Borrower); and
(vii) a customary opinions of counsel joinder agreement whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder; provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 1 contract
Sources: First Lien Credit Agreement (Allvue Systems Holdings, Inc.)
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, 2.16.1.1. The Company may at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery upon not less than 15 Business Days’ notice from the Company to the Administrative Agent (or such shorter period as may be agreed by the Administrative Agent in its sole discretion), designate any consolidated Subsidiary of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary Company that is organized in a Qualified Designated Borrower Jurisdiction;
(b) Jurisdiction and that is engaged in a line of business that is substantially similar to those lines of businesses conducted by the representations Company and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects its Subsidiaries on and as of the date of the hereof (an “Applicant Borrower”) as a Designated Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to receive Loans hereunder by delivering to the extent made as Administrative Agent (which shall promptly deliver counterparts thereof to each Lender) a duly executed notice and agreement in substantially the form of Exhibit E-1 (a specific date, in which case such representation “Designated Borrower Request and warranty shall be true Assumption Agreement”). The parties hereto acknowledge and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of agree that prior to any Applicant Borrower becoming entitled to utilize the date of the Borrower Joinder credit facilities provided for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) herein the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Lawsinformation, including the PATRIOT ACTBeneficial Ownership Certification, in each casesupporting resolutions, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorizedincumbency certificates, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel and other documents or information, in form, content and scope reasonably satisfactory to the Administrative Agent; and
, as may be required by the Administrative Agent or the Required Lenders (hor in the case of “know your customer” information and Beneficial Ownership Certification, each Lender) in their sole discretion, including, without limitation, with respect to an Applicant Borrower that is organized under the laws of Germany, evidence satisfactory to the Administrative Agent that such Applicant Borrower (i) is an entity incorporated under the laws of the Federal Republic of Germany as a limited liability company (Gesellschaft mit beschränkter Haftung) and (ii) satisfies asset, revenue, and minimum employee tests required under the laws of Germany to permit a U.S. Lender to lend to such Applicant Borrower and Notes signed by such new Borrowers to the extent any Lenders so require. If the Administrative Agent and the Required Lenders agree that an Applicant Borrower shall be entitled to receive Loans hereunder, then promptly following receipt of all such requested resolutions, incumbency certificates, opinions of counsel and other documents or information, the Administrative Agent shall have received:
send a notice in substantially the form of Exhibit E-2 (ia “Designated Borrower Notice”) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder Company and the related documents delivered pursuant to this Section 2.29 to Lenders specifying the effective date upon which the Applicant Borrower shall constitute a Designated Borrower for purposes hereof (the “Designated Borrower Effective Date”), whereupon each of the LendersLenders agrees to permit such Designated Borrower to receive Loans hereunder, on the terms and conditions set forth herein, and each of the parties agrees that such Restricted Subsidiary Designated Borrower otherwise shall be deemed a Borrower for all purposes under of this Agreement; provided that no Committed Loan Notice or Letter of Credit Application may be submitted by or on behalf of such Designated Borrower until the date five Business Days after the Designated Borrower Effective Date applicable to such Designated Borrower.
2.16.1.2. The Obligations of the Company and each Designated Borrower that is a Domestic Subsidiary shall be joint and several in nature. The Obligations of all Designated Borrowers that are Foreign Subsidiaries shall be several in nature. The Company shall execute a Guaranty in respect of any Designated Borrower prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. Any Designated Borrower that is a Domestic Subsidiary shall execute a Guaranty in respect of the Company’s and any other Designated ▇▇▇▇▇▇▇▇’s Obligations hereunder prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower. In the case the Company designates a Designated Borrower, the Company and each Designated Borrower that is a Domestic Subsidiary shall execute and deliver to the Administrative Agent a reaffirmation agreement in form and substance reasonably satisfactory to the Administrative Agent in respect of such Person’s Guaranty prior to or on the Designated Borrower Effective Date applicable to such Designated Borrower so designated by the Company.
2.16.1.3. Each Subsidiary of the Company that becomes a “Designated Borrower” pursuant to this Section 2.16 hereby irrevocably appoints the Company as its agent for all purposes relevant to this Agreement and each of the other Credit Loan Documents, including (i) the giving and receipt of notices, (ii) the execution and delivery of all documents, instruments and certificates contemplated herein and all modifications hereto, and (iii) the receipt of the proceeds of any Loans made by the Lenders to any such Designated Borrower hereunder. Any acknowledgment, consent, direction, certification or other action which might otherwise be valid or effective only if given or taken by all Borrowers, or by each Borrower acting singly, shall be valid and effective if given or taken only by the Company, whether or not any such other Borrower joins therein. Any notice, demand, consent, acknowledgement, direction, certification or other communication delivered to the Company in accordance with the terms of this Agreement shall be deemed to have been delivered to each Designated Borrower.
Appears in 1 contract
Sources: Credit Agreement (McKesson Corp)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and may from time to time, time designate any Subsidiary that is both one or more Additional Borrowers organized in a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” jurisdiction within the U.S. for purposes of this Agreement by delivery delivering to the Administrative Agent Agent:
(i) written notice (including via email) of a election to become an Additional Borrower Joinder (an “Election to Participate”) duly executed by on behalf of such Subsidiary, each other Guarantor Restricted Subsidiary and the Borrower Representative; provided that:two Business Days prior to the proposed effectiveness of such election,
(aii) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is Subsidiary required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act, in each case, at least three days no later than two Business Days prior to the date of such joinder notice (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) (A) all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Restricted Subsidiary shall have delivered to Additional Borrower by Section 5.10 or by the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the initial Borrower on the Closing Date (provided that such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its sole discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the original Borrower on the Closing Date;
(giv) documentation reasonably satisfactory to the Administrative Agent shall have receivedpursuant to which (i) each then-existing Borrower unconditionally Guarantees the Borrowings of the Additional Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder and (ii) each Additional Borrower unconditionally Guarantees the Borrowings of each then-existing Borrower on terms substantially consistent with the Guarantors’ Guarantee of the initial Borrower’s obligations hereunder;
(v) a certificate of a Responsible Officer of the Borrower stating that, as of the date the Additional Borrower joins this Agreement as such, no Default or Event of Default has occurred and is continuing;
(vi) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Notes set forth in Exhibit H-l, Exhibit H-2 and Exhibit H-3 (modified to reflect such Additional Borrower); and
(vii) a customary joinder agreement whereby the extent requested therebyAdditional Borrower becomes party hereto as a Borrower and appoints the Borrower as a “Borrower Agent” hereunder and under the other Loan Documents, customary opinions of counsel in form and substance reasonably satisfactory to the Administrative Agent; and.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent), including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder; provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 1 contract
Sources: Credit Agreement (Dragoneer Growth Opportunities Corp. II)
Designation of Borrowers. On or after the Closing Date, the (a) The Borrower Representative may, at any time and Agent may from time to timetime designate one or more Additional Borrowers organized in the United States, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” state thereof, the District of Columbia, Luxembourg or Jersey, in each case for purposes of this Agreement, by delivery delivering to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided thatAgent:
(ai) any written notice (including via email) of election to become an Additional Borrower duly executed on behalf of such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;and the Borrowers two Business Days prior to the proposed effectiveness of such election,
(bii) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that with respect to such Subsidiary (including any requisite Beneficial Ownership Certification) reasonably requested in writing by the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is and required by regulatory authorities under applicable “know your customer” and AML Lawsanti-money laundering rules and regulations, including without limitation the PATRIOT ACTPatriot Act and the Beneficial Ownership Regulation, in each case, at least three days no later than two Business Days prior to the date of such joinder effectiveness (or such shorter period later date as may be agreed by the Administrative Agent shall otherwise agreeAgent);
(eiii) such Restricted Subsidiary shall have delivered (A) solely to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a extent such Additional Borrower Joinder;
(f) if such Restricted Subsidiary is not already a Credit Party on Party, all documents, updated schedules, instruments, certificates and agreements, and all other actions and information, then required by or in respect of such Additional Borrower by Section 5.10 or by the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary Security Agreement (without giving effect to any grace periods set forth thereinfor delivery of such items, the updating of such information or the taking of such actions), (B) if reasonably requested by the Administrative Agent, a legal opinion of counsel to the Additional Borrower relating to such Additional Borrower, in form and substance consistent with that delivered in respect of the Initial Borrower on the Closing Date (provided that (x) if such Additional Borrower is organized in a jurisdiction where legal opinions are not customarily provided by a borrower’s legal counsel, no such legal opinion shall be required or such opinion shall be provided by counsel to the Required Lenders (if customary to do so), and (y) any such legal opinion may be modified in form or substance in a manner satisfactory to the Administrative Agent in its reasonable discretion), and (C) a customary secretary’s certificate attaching such documents as were delivered by the Initial Borrower on the Closing Date;
(giv) [reserved];
(v) promissory notes in respect of such Additional Borrower in favor of any Lender requesting such promissory notes, in form and substance consistent with the Administrative Agent shall have received, Note set forth in Exhibit H (modified to the extent requested thereby, reflect such Additional Borrower); and
(vi) a customary opinions of counsel joinder agreement in form and substance reasonably satisfactory to the Administrative Agent whereby the Additional Borrower becomes party hereto as a Borrower and appoints the Initial Borrower (or such other Subsidiary of Holdings as shall be the Borrower Agent at such time) as “Borrower Agent; and” hereunder and under the other Loan Documents.
(hb) After such deliveries, the appointment of the Additional Borrower shall be effective upon the effectiveness of an amendment to this Agreement and any applicable Loan Document necessary (in the reasonable judgment of the Administrative Agent) to give effect to the appointment of such Additional Borrower (in form and substance reasonably acceptable to the Administrative Agent, including amendments to disambiguate certain uses of the word “Borrower” and related terms hereunder); provided, that, for the avoidance of doubt, the Administrative Agent shall not have received:
(i) recent corporate authorizations any right to consent to the designation of any Additional Borrower and Organizational Documents of, and specimen signatures for, shall not be required to approve the addition of such Restricted Subsidiary, and (Additional Borrower to the extent availablethe requirements of Section 2.24(a) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentshave been met.
Appears in 1 contract
Designation of Borrowers. On or after the Closing Date, the Borrower Representative may, at any time and from time to time, designate any Subsidiary that is both a wholly owned Subsidiary and a Restricted Subsidiary as a “Borrower” by delivery to the Administrative Agent of a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(d) the Administrative Agent and the Lenders shall have received all documentation and other information that the Administrative Agent or a Lender has requested in writing of the Borrower Representative with respect to any new Borrower at least ten days prior to the requested date of such joinder that they reasonably determine is required by regulatory authorities under applicable “know your customer” and AML Laws, including the PATRIOT ACT, in each case, at least three days prior to the date of such joinder (or such shorter period as the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.282.29, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative Agent; and
and (h) the Administrative Agent shall have received:
(i) recent corporate authorizations and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documents.
Appears in 1 contract
Sources: First Lien Credit and Guaranty Agreement (Corsair Gaming, Inc.)
Designation of Borrowers. On (a) Notwithstanding anything to the contrary set forth herein (including Section 10.07 hereof) or after the Closing Datein any other Loan Document, the Borrower Representative may, at any time and Agent may from time to timetime designate one or more Additional Borrowers organized or existing under the laws of the United States, designate any state thereof or the District of Columbia, for purposes of this Agreement by delivering to the Administrative Agent:
(i) written notice (including via email) of election to become an Additional Borrower duly executed on behalf of the Borrower and the applicable Subsidiary of the Borrower making such election to become an Additional Borrower at least fifteen (15) Business Days prior to the proposed effectiveness of such election; provided that, promptly upon receipt by the Administrative Agent of such written notice, the Administrative Agent shall post such written notice to the Lenders;
(ii) a supplement to the applicable Collateral Documents in form and substance reasonably satisfactory to the Administrative Agent, whereby such Additional Borrower shall confirm its Guaranty of the Obligations and grant or pledge thereunder and any further documents, financing statements, agreements and instruments that is both the Administrative Agent may reasonably request to cause such Additional Borrower to satisfy the Collateral and Guarantee Requirement;
(iii) (A) a wholly owned Subsidiary certificate of a Responsible Officer certifying that such designation and such joinders and supplements to this Agreement or any Loan Document (as applicable) are permitted under this Agreement, (B) legal opinions of counsel to such Additional Borrower including customary organization, due execution, no conflicts and enforceability opinions to the extent reasonably requested by the Administrative Agent and (C) to the extent requested by the Administrative Agent, documentation substantially consistent with the documentation delivered on the Second Restatement Effective Date pursuant to Section 4.01 of this Agreement;
(iv) a Restricted Subsidiary as a “Borrower” by delivery customary joinder agreement in form and substance reasonably satisfactory to the Administrative Agent of whereby the Additional Borrower shall become party hereto as a Borrower Joinder executed by such Subsidiary, each other Guarantor and the Borrower Representative; provided that:
(a) any such Restricted Subsidiary is organized in a Qualified Borrower Jurisdiction;
(b) the representations and warranties set forth herein and in each other Credit Document shall be true and correct in all material respects on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower with the same effect as though made on and as of each of such dates (except to the extent made as of a specific date, in which case such representation and warranty shall be true and correct in all material respects on and as of such specific date);
(c) no Default or Event of Default shall exist on and as of the date of the Borrower Joinder for such proposed Restricted Subsidiary becoming an additional Borrower;
(dA) a supplement to the Guaranty (in form and substance reasonably satisfactory to the Administrative Agent) duly executed and delivered by each Guarantor (including Playa Resorts Holding B.V.), reaffirming its Guaranty of the Obligations (including the Additional Borrower’s obligations under this Agreement) and (B) a supplement to the applicable Collateral Documents (in form and substance reasonably satisfactory to the Administrative Agent and the Lenders Mexican Collateral Agent), duly executed and delivered by each Loan Party (including Playa Resorts Holding B.V.) confirming its grant or pledge thereunder;
(vi) if requested by the Administrative Agent and/or the Mexican Collateral Agent, an amendment to or restatement of the applicable Mortgage (or other instrument reasonably satisfactory to the Administrative Agent) in form and substance reasonably satisfactory to the Administrative Agent and the Mexican Collateral Agent, duly executed and delivered by each mortgagor of a Mortgaged Property confirming that its obligations thereunder shall have received apply to the Additional Borrower’s obligations under this Agreement;
(vii) all documentation and other information that the Administrative Agent or a Lender has requested in writing respect of the Additional Borrower Representative with (including, if the Additional Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a Beneficial Ownership Certification in respect to any new Borrower at least ten days prior to of the requested date of such joinder that they reasonably determine is Additional Borrower) required by regulatory authorities under applicable “know your customer” and AML Laws, anti-money laundering rules and regulations (including the USA PATRIOT ACT, Act and Beneficial Ownership Regulations) that has been reasonably requested in each case, at least three days prior to the date of such joinder (or such shorter period as writing by the Administrative Agent shall otherwise agree);
(e) such Restricted Subsidiary shall have delivered to the Administrative Agent a duly authorized, executed and delivered counterpart signature page to a Borrower Joinder;
(f) if such Restricted Subsidiary is not a Credit Party on the date it becomes or is to become an additional Borrower pursuant to this Section 2.28, such Restricted Subsidiary shall have delivered to the Collateral Agent duly authorized, executed and delivered copies of any Collateral Documents required to be entered into by such Restricted Subsidiary pursuant to Section 5.11 as applied to such Restricted Subsidiary becoming a Borrower hereunder and, regardless of whether such Restricted Subsidiary is a Credit Party on the date it becomes or is to become an additional Borrower hereunder, Section 5.11 shall have been satisfied with respect to such Restricted Subsidiary (without giving effect to any grace periods set forth therein);
(g) the Administrative Agent shall have received, to the extent requested thereby, customary opinions of counsel reasonably satisfactory to the Administrative AgentLender; and
(hviii) at the Administrative Agent time of and immediately after giving effect to the designation of such Additional Borrower, no Event of Default or Default shall have received:
(i) recent corporate authorizations occurred and Organizational Documents of, and specimen signatures for, such Restricted Subsidiary, and (to the extent available) a certificate of good standing for such Restricted Subsidiary as of a recent date from the Secretary of State or similar Governmental Authority of the jurisdiction of its organization; and
(ii) a certificate of an authorized signatory of such Restricted Subsidiary certifying the copies of the foregoing documents provided by it. Upon receipt thereof the Administrative Agent shall promptly transmit such Borrower Joinder and the related documents delivered pursuant to this Section 2.29 to each of the Lenders, and such Restricted Subsidiary shall be deemed a Borrower for all purposes under this Agreement and the other Credit Documentscontinuing.
Appears in 1 contract