Common use of Closing Date Borrowing Clause in Contracts

Closing Date Borrowing. The obligations of the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2): (a) The Administrative Agent and the Lenders (or their respective counsels) shall have received the following, each of which shall be original, .pdf or facsimile copies or delivered by other electronic method (followed promptly by originals) unless otherwise specified, and each to be in form and substance reasonably satisfactory to the Lenders: (i) a counterpart of this Agreement signed by or on behalf of each party hereto; (ii) a counterpart of the Guaranty Agreement signed by or on behalf of each of the Loan Party and the Administrative Agent; (iii) a certificate of the Secretary or Assistant Secretary of each Loan Party, attaching and certifying copies of its bylaws, partnership agreement or limited liability company agreement, as applicable, and of the resolutions of its board of directors or other equivalent governing body, or comparable organizational documents and authorizations, authorizing the execution, delivery and performance of the Loan Documents to which it is a party and certifying the name, title and true signature of each officer of such Loan Party executing the Loan Documents to which it is a party; (iv) certified copies of the articles or certificate of incorporation, certificate of organization, formation or limited partnership, or other registered organizational documents, as applicable, of each Loan Party, together with certificates of good standing or existence (if available in the jurisdiction of organization of the relevant Loan Party), as may be available from the Secretary of State of the jurisdiction of organization of such Loan Party; (v) a favorable written opinion of (a) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, and (b) to the extent reasonably requested by the Lenders, local counsel to the Loan Parties in other jurisdictions that may be relevant to this Agreement or any other Loan Document, in each case, addressed to the Administrative Agent and each of the Lenders, covering such matters relating to the Loan Documents as the Lenders may reasonably request; (vi) a certificate, dated the Closing Date and signed by a Responsible Officer, certifying that after giving effect to the Borrowing, (x) the conditions set forth in paragraphs (b), (c), (e), (f), (g) and (h) of this Section 3.1 shall be satisfied, (y) no Default or Event of Default exists; (vii) [reserved]; (viii) certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; (ix) a certificate, dated the Closing Date and signed by the chief financial officer or treasurer of the Borrower, confirming that the Loan Parties, on a consolidated basis, are Solvent before and after giving effect to the Borrowing and the consummation of the transactions contemplated to occur on the Closing Date; (x) the results of a search of the Uniform Commercial Code filings (or equivalent filings), judgment filings and tax filings made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons and in which the chief executive office of each such Person is located, and in such other jurisdictions as may be reasonably required by the Lenders, together with copies of the financing statements (or similar documents) disclosed by such search; and (xi) with respect to Indebtedness not permitted to be outstanding pursuant to Section 6.1 or Liens not permitted to be outstanding pursuant to Section 6.2, copies of duly executed payoff letters, in form and substance reasonably satisfactory to the Lenders, executed by each of the existing lenders or the administrative agent thereof, together with (a) UCC-3 or other appropriate termination statements, in form and substance reasonably satisfactory to the Lenders, releasing all liens of the existing lenders upon any of the personal property of the Borrower and its Restricted Subsidiaries, (b) cancellations and releases, in form and substance reasonably satisfactory to the Lenders, releasing all liens of the existing lenders upon any of the real property of the Borrower and its Restricted Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Lenders to evidence the payoff of Indebtedness owed to the existing lenders. (b) At the time of and immediately after giving effect to the Borrowing, no Default or Event of Default shall exist. (c) At the time of and immediately after giving effect to such Borrowing, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects). (d) The Borrower shall have delivered the required Notice of Borrowing. (e) Immediately after giving effect to the Borrowing and the transactions contemplated hereby, the Borrower and its Restricted Subsidiaries shall have no outstanding Indebtedness other than Indebtedness not prohibited by this Agreement. (f) The Common Stock Investment shall have been, or substantially concurrently with the Borrowing shall be, consummated. (g) The Borrower shall have delivered notice to the Senior Notes Trustee in connection with the satisfaction and discharge of all Indebtedness (including, without limitation, accrued interest and any prepayment premiums) under the Senior Notes (the “Refinancing”)and shall have irrevocably deposited, or substantially concurrently with the Borrowing shall irrevocably deposit, with the Senior Notes Trustee trust funds in an amount sufficient for the satisfaction and discharge of the Senior Notes (including, without limitation, all principal, accrued interest and prepayment premiums with respect thereto), in each case in accordance with the Senior Notes Indenture, and shall have delivered to the Administrative Agent and the Lenders evidence reasonably satisfactory to the Lenders that the Senior Notes shall have been, or substantially concurrently with the Borrowing shall be, satisfied and discharged in accordance with the Senior Notes Indenture. (h) Since the SPA Signing Date to the Closing Date, no event or events shall have occurred and be continuing which, individually or in the aggregate, constitute, or would reasonably be expected to have, a Material Adverse Effect.

Closing Date Borrowing. The obligations of On or prior to the Lenders to make Loans hereunder shall not become effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.2):Closing Date: (a) The Administrative Agent (or its counsel) shall have received from each of the Borrower, the Collateral Agent and the Lenders (i) a counterpart of this Agreement and the other Loan Documents to which such persons are a party signed on behalf of such party or their respective counsels(ii) written evidence reasonably satisfactory to the Administrative Agent (which may include delivery of a signed signature page of this Agreement by electronic transmission (e.g., “pdf”)) that such party has signed a counterpart of this Agreement. (b) The Administrative Agent shall have received received, on behalf of itself, the followingCollateral Agent and the Lenders, (i) a written opinion of Ropes & G▇▇▇ LLP, counsel to the Loan Parties and (ii) a written opinion of V▇▇▇▇▇▇ LLP, Maryland counsel to the Borrower, in each of which shall be originalcase, .pdf or facsimile copies or delivered by other electronic method (followed promptly by originalsA) unless otherwise specifieddated the Closing Date, (B) addressed to the Administrative Agent, the Collateral Agent and each to be the Lenders on the Closing Date and (C) in form and substance reasonably satisfactory to the Lenders:Administrative Agent covering such matters relating to the Loan Documents as the Administrative Agent shall reasonably request. (ic) a counterpart of this Agreement signed by or on behalf of each party hereto; (ii) a counterpart of the Guaranty Agreement signed by or on behalf of each of the Loan Party and the The Administrative Agent; (iii) Agent shall have received a certificate of the Secretary or Assistant Secretary or similar officer of each Loan Party dated the Closing Date and certifying: (i) that attached thereto is a copy of the certificate or articles of incorporation, certificate of limited partnership, certificate of formation or other equivalent constituent and governing documents, including all amendments thereto, of such Loan Party, attaching and certifying copies certified as of a recent date by the Secretary of State (or other similar official) of the jurisdiction of its bylawsorganization, (ii) that attached thereto is a certificate as to the good standing (to the extent such concept or a similar concept exists under the laws of such jurisdiction) of such Loan Party as of a recent date from the Secretary of State (or other similar official) of the jurisdiction of its organization, (iii) that attached thereto is a true and complete copy of the by-laws (or partnership agreement, partnership agreement or limited liability company agreement, as applicable, and of the resolutions of its board of directors agreement or other equivalent constituent and governing documents) of such Loan Party as in effect on the Closing Date, (iv) that attached thereto is a true and complete copy of resolutions duly adopted by the Board of Directors (or equivalent governing body, ) of such Loan Party (or comparable organizational documents and authorizations, its managing general partner or managing member) authorizing the execution, delivery and performance of the Loan Documents dated as of the Closing Date to which it such Loan Party is a party and, in the case of the Borrower, the borrowings hereunder, and certifying that such resolutions have not been modified, rescinded or amended and are in full force and effect on the name, title Closing Date, (v) as to the incumbency and true specimen signature of each officer of such Loan Party executing the any Loan Documents to which it is a party; (iv) certified copies of the articles Document or certificate of incorporation, certificate of organization, formation or limited partnership, or any other registered organizational documents, as applicable, of each Loan Party, together with certificates of good standing or existence (if available document delivered in the jurisdiction of organization of the relevant Loan Party), as may be available from the Secretary of State of the jurisdiction of organization connection herewith on behalf of such Loan Party; (v) a favorable written opinion of (a) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, New York counsel to the Loan Parties, and (b) to the extent reasonably requested by the Lenders, local counsel to the Loan Parties in other jurisdictions that may be relevant to this Agreement or any other Loan Document, in each case, addressed to the Administrative Agent and each of the Lenders, covering such matters relating to the Loan Documents as the Lenders may reasonably request;and (vi) as to the absence of any pending proceeding for the dissolution or liquidation of such Loan Party or, to the knowledge of such person, threatening the existence of such Loan Party. (d) The Administrative Agent shall have received (i) the results of Uniform Commercial Code and other customary Lien searches with respect to each Loan Party and (ii) insurance certificates and applicable endorsements listing the Collateral Agent as additional insured and loss payee, as applicable. (e) Each Arranger shall have completed, and be satisfied in all respects with the results of its business, legal, accounting, real estate and environmental due diligence of, among other things, the Borrower, the Guarantors and their respective subsidiaries. (f) [Reserved]. (g) The Administrative Agent shall have received (i) the audited consolidated balance sheets and the related statements of operations and comprehensive income (loss), cash flows and stockholders’ equity of the Borrower and its consolidated Subsidiaries for the fiscal years ended December 31, 2017, December 31, 2018 and December 31, 2019 and (ii) the unaudited consolidated balance sheets and the related statements of operations and comprehensive income (loss), cash flows and stockholders’ equity of the Borrower and its consolidated Subsidiaries for the fiscal quarters ended March 31, 2020, June 30, 2020 and September 30, 2020. (h) The Administrative Agent shall have received a certificate, dated solvency certificate substantially in the Closing Date form of Exhibit C and signed by a Responsible Officer, certifying that Financial Officer of the Borrower confirming the solvency of the Group Members on a consolidated basis after giving effect to the BorrowingTransactions on the Closing Date. (i) The Agents and Citigroup Global Markets Inc. shall have received all fees payable thereto or to any Lender on or prior to the Closing Date and, to the extent invoiced at least three Business Days prior to the Closing Date, reimbursement or payment of all reasonable and documented out-of-pocket expenses (xincluding reasonable and documented fees, charges and disbursements of White & Case LLP) required to be reimbursed or paid by the Loan Parties hereunder or under any Loan Document on or prior to the Closing Date (which amounts may be offset against the proceeds of the Loans). (j) The Collateral and Guarantee Requirement shall be satisfied as of the Closing Date (in the sole discretion of the Administrative Agent). (k) The Administrative Agent shall have received all documentation and other information required by Section 3.25(a) in accordance with the time-periods set forth therein. (l) Since December 31, 2019, no event, change or development shall have occurred that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect. (m) The Borrower shall have delivered to the Administrative Agent an officer’s certificate dated as of the Closing Date, certifying as to the satisfaction of the conditions set forth in paragraphs (bSections 4.01(j), (c4.01(l), (e), (f), (g4.02(b) and (h) of this Section 3.1 shall be satisfied, (y) no Default or Event of Default exists;4.02(c). (viin) [reserved]; The Administrative Agent (viiior its counsel) certified copies of all consents, approvals, authorizations, registrations and filings and orders required to be made or obtained under any Requirement of Law, or by any Contractual Obligation of any Loan Party, in connection with the execution, delivery, performance, validity and enforceability of the Loan Documents or any of the transactions contemplated thereby, and such consents, approvals, authorizations, registrations, filings and orders shall be in full force and effect and all applicable waiting periods shall have expired, and no investigation or inquiry by any governmental authority regarding the Commitments or any transaction being financed with the proceeds thereof shall be ongoing; received (ixi) a certificate, dated the Closing Date fully executed and signed by the chief financial officer or treasurer effective copy of the Borrower, confirming that the Loan Parties, on a consolidated basis, are Solvent before and after giving effect an amendment to the Borrowing and the consummation of the transactions contemplated to occur on the Closing Date; (x) the results of a search of the Uniform Commercial Code filings (or equivalent filings), judgment filings and tax filings made with respect to the Loan Parties in the states (or other jurisdictions) of formation of such Persons and in which the chief executive office of each such Person is located, and in such other jurisdictions as may be reasonably required by the Lenders, together with copies of the financing statements (or similar documents) disclosed by such search; and (xi) with respect to Indebtedness not permitted to be outstanding pursuant to Section 6.1 or Liens not permitted to be outstanding pursuant to Section 6.2, copies of duly executed payoff lettersABL Credit Agreement, in form and substance reasonably satisfactory to the Lenders, executed by Administrative Agent and (ii) from each of the existing lenders or Borrower, the administrative agent thereofSubsidiary Loan Parties, together with (a) UCC-3 or other appropriate termination statements, in form the Collateral Agent and substance reasonably satisfactory to the Lenders, releasing all liens ABL Agent a counterpart of the existing lenders upon any ABL/Term Intercreditor Agreement signed on behalf of the personal property of the Borrower and its Restricted Subsidiaries, (b) cancellations and releases, in form and substance reasonably satisfactory to the Lenders, releasing all liens of the existing lenders upon any of the real property of the Borrower and its Restricted Subsidiaries, and (c) any other releases, terminations or other documents reasonably required by the Lenders to evidence the payoff of Indebtedness owed to the existing lenderssuch party. (bo) At So long as requested by the time Administrative Agent, the Collateral Agent or any Lender in writing at least five days in advance of the Closing Date, the Administrative Agent and immediately after giving effect the Collateral Agent shall have received, at least three Business Days prior to the BorrowingClosing Date, no Default all documentation and other information that is required (as determined by the Administrative Agent, the Collateral Agent or Event of Default shall existsuch Lender) by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act. (c) At the time of and immediately after giving effect to such Borrowing, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects). (dp) The Borrower shall have delivered paid to each Lender an initial yield payment equal to 2.00% of its Term Loan Commitment with respect to the required Notice of Borrowing. Initial Term Loans on the Closing Date (e) Immediately after as in effect immediately before giving effect to the Borrowing termination thereof pursuant to Section 2.08), with such payment to be earned by, and payable to, each such Lender on the Closing Date. For purposes of determining compliance with the conditions specified in this Section 4.01, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless an officer of the Administrative Agent responsible for the transactions contemplated hereby, by the Borrower and its Restricted Subsidiaries Loan Documents shall have no outstanding Indebtedness other than Indebtedness not prohibited by this Agreement. (f) The Common Stock Investment shall have been, or substantially concurrently with the Borrowing shall be, consummated. (g) The Borrower shall have delivered received notice from such Lender prior to the Senior Notes Trustee in connection with the satisfaction and discharge of all Indebtedness (including, without limitation, accrued interest and any prepayment premiums) under the Senior Notes (the “Refinancing”)and shall have irrevocably deposited, or substantially concurrently with the Borrowing shall irrevocably deposit, with the Senior Notes Trustee trust funds in an amount sufficient for the satisfaction and discharge of the Senior Notes (including, without limitation, all principal, accrued interest and prepayment premiums with respect thereto)Closing Date specifying its objection thereto and, in each the case in accordance with the Senior Notes Indentureof a Borrowing, and such Lender shall not have delivered made available to the Administrative Agent and such Lender’s ratable portion of the Lenders evidence reasonably satisfactory to the Lenders that the Senior Notes shall have been, or substantially concurrently with the Borrowing shall be, satisfied and discharged in accordance with the Senior Notes Indentureinitial Borrowing. (h) Since the SPA Signing Date to the Closing Date, no event or events shall have occurred and be continuing which, individually or in the aggregate, constitute, or would reasonably be expected to have, a Material Adverse Effect.