Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender shall be obligated to fund any Loan, if, as of the date thereof: (a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective; (b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or (c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documents.
Appears in 3 contracts
Samples: Credit Agreement (Rimini Street, Inc.), Credit Agreement (Rimini Street, Inc.), Credit Agreement (Rimini Street, Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender Each Borrowing (including the initial Borrowing) hereunder shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) the Administrative Agent and each Funding Agent shall have received such approvals, documents, instruments, certificates and opinions as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;it may reasonably request; and
(b) with respect to Incremental Term Loans, on the conditions set forth in Section 2.1(e)(ii)(A) date of such Borrowing the following statements shall not be or have been satisfied; or
true (c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower Company that such statements are then true by reference to the facts and circumstances existing on the date of such Borrowing):
(xi) except the Company (or the Master Servicer on behalf of the Company) has delivered a Borrowing Request complying with respect the requirements of Section 3.1;
(ii) the Facility Termination Date has not occurred and no event exists, or would result from such Borrowing, that constitutes a Termination Event or Potential Termination Event;
(iii) no portion of the proceeds of such Borrowing will be used by the Company to Incremental Term Loans if pay the whole or part to make any payment which is restricted pursuant to the provisos to Sections 5.1(a) and as applicable as provided (b);
(iv) all of the representations and warranties made by each of the Company, the Master Servicer and each Originator in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Transaction Document to which it is a party are true and correct in all material respects (without duplication on and as of any materiality qualifier contained therein) the date of such Borrowing as if made on and as of such date, date (except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) are expressly made as of another date);
(v) after giving effect to such earlier dateBorrowing, the Principal Balance of all Loans outstanding on the relevant Borrowing Date does not exceed the Maximum Available Borrowing on such Borrowing Date; and
(vi) and after giving effect to such Borrowing if a Loan comprising, or comprising part, of such Borrowing:
(yA) is denominated in U.S. dollars, the conditions Principal Balance of all Loans denominated in this Section 3.3 such currency outstanding on the relevant Borrowing Date does not exceed the Maximum Available Borrowing (without regard to any determination or agreement made or to be made by Agent or providers Dollars) on such Borrowing Date;
(B) is denominated in Euro, the Principal Balance of any Incremental Term Loan under Section 3.3(a)all Loans denominated in such currency outstanding on the relevant Borrowing Date does not exceed the Maximum Available Borrowing (Euro) have been satisfied and on such Borrowing Date; and
(iiC) a reaffirmation by each Credit Party if denominated in Sterling, the Principal Balance of all Loans denominated in such currency outstanding on the granting and continuance of Agent’s Liens, relevant Borrowing Date does not exceed the Maximum Available Borrowing (Sterling) on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssuch Borrowing Date.
Appears in 2 contracts
Samples: European Receivables Loan Agreement, European Receivables Loan Agreement (Huntsman CORP)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender The obligation of the Lenders to make any Loan hereunder (including on the Closing Date) shall be obligated subject to fund any Loan, if, as the satisfaction or written waiver of each of the date thereofconditions precedent set forth in this Section 4.2:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan Closing Date shall have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveoccurred;
(b) with respect no Default or Event of Default shall have occurred or be continuing or could reasonably be expected to Incremental Term Loans, result from the conditions set forth in Section 2.1(e)(ii)(A) shall not be disbursement of such Loans or have been satisfied; orthe use of the proceeds therefrom;
(c) each Milestone required to be satisfied prior to the Agent date of such Borrowing shall not have received a duly completed Notice of Borrowing been satisfied (or waived) in accordance with Section 2.5. The request by the Borrower terms hereof;
(d) immediately prior to and acceptance by after giving effect to such Borrowing and the Borrower use of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Loan Party or any of its Subsidiaries contained herein or in any other Loan Facility Document is true true, correct and correct complete in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true true, correct and correct complete in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date);
(e) there shall be an Approved Budget in full force and effect on and as of each of (yi) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Borrowing date for such Loan under Section 3.3(a)) have been satisfied and (ii) the time that such Loan is funded;
(f) the Agent shall have received a reaffirmation Note to the extent requested by each Credit Party any Lender pursuant to Section 2.4 for the Loans duly executed and delivered by a Responsible Officer of the granting Borrower;
(g) there shall not exist any proceeding, order, injunction or decree of any Governmental Authority (including the Bankruptcy Court) or in any court restraining or prohibiting (or attempting to restrain or prohibit) the funding of the Loan hereunder;
(h) the proceeds of such Loan shall be directed and continuance of Agent’s Liens, requested for use in accordance with Section 2.5;
(i) the administrative fees required to be paid pursuant to Section 2.8 and all other fees required to be paid on behalf of itself such Borrowing Date pursuant to this Agreement and the Secured Parties, other Facility Documents and all costs and expenses required to be paid on such Borrowing Date (including pursuant to Section 8.2) pursuant to this Agreement and the Collateral Documentsother Facility Documents shall have been, or substantially contemporaneously with the making of the Loans on the Borrowing Date shall be, paid (which amounts, at the sole option of the Lenders, may be offset against the proceeds of such Borrowing on the relevant Borrowing Date);
(j) the Interim DIP Order (in the case of Loans made prior to the entry of the Final DIP Order) or the Final DIP Order (in the case of Loans made after the entry of the Final DIP Order) (w) shall be in full force and effect, (x) shall not have been reversed, vacated or stayed, (y) shall not have become the subject of any appeal or challenge, and (z) shall not have been amended, supplemented or otherwise modified without the prior written consent of the Required Lenders;
(k) there shall not have occurred since the Petition Date any development or event which, individually or in the aggregate with other such circumstances, has had or could reasonably be expected to have, a Material Adverse Effect (except to the extent relating to the Chapter 11 Cases);
(l) in the case of a Borrowing of any New Money Loans, in addition to the above, the following shall be satisfied (or waived as provided herein):
(i) the aggregate principal amount of all New Money Loans requested by the Borrower on such Borrowing Date shall not exceed the amount identified in the Approved Budget (subject to Permitted Variances) (unless the Required Lenders consent thereto); and
(ii) the making of such New Money Loans, and the use of proceeds therefrom, shall comply with the Approved Budget (subject to Permitted Variances), the DIP Draw Conditions and with this Agreement in all respects; and
(m) the Agent shall have received a duly executed Notice of Borrowing from the Borrowing complying with the requirements of Section 2.1. Each Notice of Borrowing (or, in the case of the Borrowing of Loans not constituting New Money Loans, each deemed request by the Borrower for a Loan) shall constitute a representation by the Borrower that the foregoing conditions are satisfied (or, as applicable, have been waived) on and as of each of (i) the date of such Notice of Borrowing, (ii) the requested Borrowing Date, and (iii) the date on which such Loan is funded or made (or deemed funded or made, as applicable).
Appears in 2 contracts
Samples: Multi Draw Senior Secured Super Priority Priming Debtor in Possession Credit Agreement and Guaranty (Sientra, Inc.), Multi Draw Senior Secured Super Priority Priming Debtor in Possession Credit Agreement and Guaranty (Sientra, Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender The Borrowing by the Borrower from the Lenders shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveReserved;
(b) with respect After giving effect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(ABorrowing requested by the Borrower the following statements shall be true (and the Borrower shall be deemed to have certified that):
(i) shall the Facility Amount will not be or have been satisfiedexceed the Borrowing Limit; orand
(ii) the Facility Amount will not exceed the Facility Limit.
(c) On the Agent Borrowing Date, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan Borrowing shall be deemed to constitute, as of the date thereof, have represented that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on the Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except or would result from the Borrowing, which constitutes a Program Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Program Termination Event;
(iii) no event has occurred and is continuing, or would result from the Borrowing, which constitutes a Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Termination Event;
(iv) Reserved;
(v) the requirements set forth in Section 2.01(a) hereof shall have been complied with;
(a) the Borrower has delivered to each Lender a copy of the applicable Notice of Borrowing and the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (b) the Borrower has delivered or caused to have been delivered to the extent that such representation or warranty expressly relates Custodian the Notice of Pledge with respect to an earlier date the Receivables being Pledged hereunder three (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein3) as of such earlier date) Business Days prior to the Borrowing Date, and (yc) the Contract related to each Receivable being Pledged hereunder on the Borrowing Date has been duly assigned by the Originator to the Borrower and duly assigned by the Borrower to the Collateral Agent;
(vii) all terms and conditions of the Purchase and Sale Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on the Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without regard limitation, the perfection of the Borrower’s interests therein (other than with respect to any determination Equipment which has an Amortized Equipment Cost of less than $25,000 and is leased under Dollar Purchase Option Contracts or agreement made or $50,000 and is leased under FMV Contracts), shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent or providers of any Incremental Term Loan under Section 3.3(a)) a first priority perfected security interest in such Receivables, Related Security and the Other Conveyed Property related thereto and the proceeds thereof shall have been satisfied made, taken or performed;
(viii) (A) the Initial Servicer shall have taken or caused to be taken all steps necessary under all applicable law (including the filing of an Obligor Financing Statement) in order to cause a valid, subsisting and enforceable perfected, first priority security interest to exist in Originator’s favor in the Obligor Collateral securing each Receivable being Pledged hereunder on the Borrowing Date (other than with respect to Equipment which has an Amortized Equipment Cost of less than $25,000 and is leased under Dollar Purchase Option Contracts or $50,000 and is leased under FMV Contracts), (B) the Originator shall have assigned the perfected, first priority security interest in the Obligor Collateral to the Borrower pursuant to the Purchase and Sale Agreement and (iiC) a reaffirmation by each Credit Party of the granting and continuance of Agent’s LiensBorrower shall have assigned the perfected, on behalf of itself first priority security interest in the Obligor Collateral (and the Secured Partiesproceeds thereof) referred to in clause (A) above to the Collateral Agent, pursuant to Section 2.11 hereof;
(ix) Reserved; and
(x) the Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of the Collateral DocumentsAgent a valid, subsisting and enforceable first priority perfected security interest in the Borrower’s interest in the Obligor Collateral related to each Receivable being Pledged hereunder on the Borrowing Date (other than with respect to Equipment which has an Amortized Equipment Cost of less than $25,000 and is leased under Dollar Purchase Option Contracts or $50,000 and is leased under FMV Contracts);
(d) No law or regulation shall prohibit, and no order, judgment or decree of any Government Entity shall prohibit or enjoin, the making of such Loans by any Lender in accordance with the provisions hereof; and
(e) The Lenders shall have received and found to be satisfactory with respect to Pledged Receivables being Pledged in connection with the Borrowing, which have been previously pledged to any lender by the Originator, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables.
(f) Unless a credit agreement and/or security agreement, including but not limited to any such agreement with National City Bank, as agent, related to Receivables being Pledged by the Borrower in connection with the Borrowing, shall have provided for an automatic release of the Agent’s or Collateral Agent’s, as applicable, lien and security interest in such Receivables granted thereunder, the applicable agent or lender shall have executed and delivered to the Borrower and the Collateral Agent a partial release letter and the Borrower shall have duly filed with the appropriate filing office a UCC-3 partial release evidencing the release contained in such release letter, in each case in a form satisfactory to the Collateral Agent.
Appears in 2 contracts
Samples: Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.), Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein(a) No Lender shall be required to make any Advance (other than an Advance that after giving effect thereto and to the application of the proceeds thereof, does not increase the amount of the sum of outstanding (a) Advances and (b) Reimbursement Obligations) and no Lender Issuer shall be obligated to fund issue any LoanFacility Letter of Credit, ifunless on the applicable Borrowing Date:
(i) the Agent shall have received notice of Borrower's request for the Advance and/or the issuance of a Facility Letter of Credit with respect thereto as provided in Sections 2.06(a) and 2.15(c)(i), respectively, and such other approvals, opinions or documents as the Agent may reasonably request; and
(ii) the representations and warranties of the Borrower contained in Article IV hereof are true and correct as of such Borrowing Date or Issuance Date, PROVIDED, HOWEVER, for the purposes hereof (A) from and after the date of delivery by the Borrower pursuant to Section 6.04(a) of its Consolidated Financial Statements for the year ending November 30, 1997, the Borrower shall represent and warrant to each of the Lenders that the annual audited financial statements, and the related notes and schedules (if any), audited and reported upon by Deloitte & Touche, independent certified public accountants, most recently delivered by the Borrower pursuant to Section 6.04(a) as of the date thereof:
of the request for an Advance and/or the issuance of a Facility Letter of Credit (a) any representation were prepared in accordance with GAAP, consistently applied throughout the respective periods covered thereby, (b) present fairly the consolidating financial condition of the Borrower and the Subsidiary Guarantors as of the respective dates thereof, (c) show all material Liabilities, direct or warranty contingent, of each Subsidiary Guarantor as of those dates (including, without limitations, Liabilities for taxes and material commitments), and (d) present fairly the consolidating results of operations and cash flows of the Subsidiary Guarantors for the respective periods covered thereby; and (B) from and after the date of delivery by any Credit Party contained herein or the Borrower pursuant to Section 6.04(b) of its Consolidated Financial Statements for the quarter ending February 28, 1998, the references in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained thereinSection 4.08 to "Unaudited Financial Statements" shall be deemed to be references to the quarterly unaudited financial statements most recently delivered by the Borrower pursuant to Section 6.04(b) as of the date of the request for an Advance and/or the issuance of a Facility Letter of Credit and such date, except financial statements shall present fairly the consolidating results of operations and cash flows of the Subsidiary Guarantors for the respective periods covered thereby;
(iii) All legal matters incident to the extent that making of such representation Advance shall be satisfactory to the Lenders and their counsel;
(iv) There exists no Event of Default or warranty expressly relates to an earlier date Unmatured Default;
(in which event such representations and warranties were untrue or incorrect v) The making of the Advance and/or the issuance of a Facility Letter of Credit will not result in any material respect (without duplication Event of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation Default or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;Unmatured Default.
(b) Each Borrowing Notice with respect to Incremental Term Loans, each such Advance or the conditions set forth in Section 2.1(e)(ii)(A) Issuance Notice with respect to such Facility Letter of Credit shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions contained in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) 5.02 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssatisfied.
Appears in 2 contracts
Samples: Credit Agreement (LNR Property Corp), Credit Agreement (Lennar Corp)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinThe obligation of each Lender, no the Swingline Lender and the Issuing Bank to make a Credit Extension shall be obligated subject to fund any Loanthe further conditions precedent that on the date of such Credit Extension, if, as the following statements shall be true (and each of the date thereof:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result giving of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed applicable Notice of Borrowing in accordance with Section 2.5. The request by Borrowing, Notice of Swingline Loan or Letter of Credit Application and the Borrower and acceptance by the Borrower Borrowers of the proceeds of any Loan such Borrowing or Swingline Borrowing or the issuance, increase, or extension of such Letter of Credit shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower Borrowers that on the date of such Borrowing or Swingline Borrowing or on the date of such issuance, increase, or extension of such Letter of Credit, as applicable, such statements are true):
(xa) except with respect to Incremental Term Loans if the representations and as applicable as provided warranties contained in Section 3.3(a) above, each representation Article IV of this Agreement and warranty by any Credit Party the representations and warranties contained herein or in any the other Loan Document is Documents are true and correct in all material respects (without duplication provided that to the extent any representation and warranty is qualified as to “Material Adverse Change” or otherwise as to “materiality”, such representation and warranty is true and correct in all respects) on and as of any materiality qualifier contained therein) the date of such Borrowing or Swingline Borrowing or the date of the issuance, increase, or extension of such Letter of Credit, before and after giving effect to such Borrowing or Swingline Borrowing or to the issuance, increase, or extension of such Letter of Credit and to the application of the proceeds from such Borrowing or Swingline Borrowing, as though made on and as of such date, date except to the extent that any such representation or warranty expressly relates solely to an earlier date (date, in which event such representations and warranties were case it shall have been true and correct in all material respects as of such earlier date (without duplication of provided that to the extent any materiality qualifier contained therein) representation and warranty is qualified as to “Material Adverse Change” or otherwise as to “materiality”, such representation and warranty is true and correct in all respects as of such earlier date);
(b) no Default or Event of Default has occurred and is continuing or would result from such Borrowing or Swingline Borrowing or from the application of the proceeds therefrom, or would result from the issuance, increase, or extension of such Letter of Credit;
(yc) There is no Excess Cash on and as of the conditions in this Section 3.3 (without regard date of such Borrowing, Swingline Borrowing or the date of the issuance, increase, or extension of such Letter of Credit, before and after giving effect to any determination or agreement made such Borrowing, Swingline Borrowing or to be made by Agent the issuance, increase, or providers extension of any Incremental Term Loan under Section 3.3(a)) have been satisfied such Letter of Credit and (ii) a reaffirmation by each Credit Party to the application of the granting proceeds therefrom (as such use of proceeds is certified to by the Borrower Representative in the applicable Notice of Borrowing) on or around such date, but in any event, not to exceed three (3) Business Days after such date; and
(d) On and continuance as of Agent’s Liensthe date of such Borrowing, on behalf Swingline Borrowing or the date of itself the issuance, increase, or extension of such Letter of Credit, before and the Secured Partiesafter giving effect to such Borrowing, pursuant Swingline Borrowing or to the Collateral Documentsissuance, increase, or extension of such Letter of Credit and to the application of the proceeds therefrom, the Outstanding Amount of Revolving Advances does not exceed the Aggregate Revolving Commitments then in effect.
Appears in 2 contracts
Samples: Credit Agreement (CorEnergy Infrastructure Trust, Inc.), Credit Agreement (CorEnergy Infrastructure Trust, Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender The Borrowing by the Borrower from the Lenders shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveReserved;
(b) with respect After giving effect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(ABorrowing requested by the Borrower the following statements shall be true (and the Borrower shall be deemed to have certified that):
(i) shall the Facility Amount will not be or have been satisfiedexceed the Borrowing Limit; orand
(ii) the Facility Amount will not exceed the Facility Limit.
(c) On the Agent Borrowing Date, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan Borrowing shall be deemed to constitute, as of the date thereof, have represented that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on the Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except or would result from the Borrowing, which constitutes a Program Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Program Termination Event;
(iii) no event has occurred and is continuing, or would result from the Borrowing, which constitutes a Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Termination Event;
(iv) Reserved;
(v) the requirements set forth in Section 2.01(a) hereof shall have been complied with;
(a) the Borrower has delivered to each Lender a copy of the applicable Notice of Borrowing and the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (b) the Borrower has delivered or caused to have been delivered to the extent that such representation or warranty expressly relates Custodian the Notice of Pledge with respect to an earlier date the Receivables being Pledged hereunder three (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein3) as of such earlier date) Business Days prior to the Borrowing Date, and (yc) the Contract related to each Receivable being Pledged hereunder on the Borrowing Date has been duly assigned by the Originator to the Borrower and duly assigned by the Borrower to the Collateral Agent;
(vii) all terms and conditions of the Purchase and Sale Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on the Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without regard limitation, the perfection of the Borrower’s interests therein (other than with respect to any determination Equipment which has an Amortized Equipment Cost of less than $25,000 and is leased under Dollar Purchase Option Contracts or agreement made or $50,000 and is leased under FMV Contracts), shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent or providers of any Incremental Term Loan under Section 3.3(a)) a first priority perfected security interest in such Receivables, Related Security and the Other Conveyed Property related thereto and the proceeds thereof shall have been satisfied made, taken or performed;
(A) the Initial Servicer shall have taken or caused to be taken all steps necessary under all applicable law (including the filing of an Obligor Financing Statement) in order to cause a valid, subsisting and enforceable perfected, first priority security interest to exist in Originator’s favor in the Obligor Collateral securing each Receivable being Pledged hereunder on the Borrowing Date (other than with respect to Equipment which has an Amortized Equipment Cost of less than $25,000 and is leased under Dollar Purchase Option Contracts or $50,000 and is leased under FMV Contracts), (B) the Originator shall have assigned the perfected, first priority security interest in the Obligor Collateral to the Borrower pursuant to the Purchase and Sale Agreement and (iiC) a reaffirmation by each Credit Party of the granting and continuance of Agent’s LiensBorrower shall have assigned the perfected, on behalf of itself first priority security interest in the Obligor Collateral (and the Secured Partiesproceeds thereof) referred to in clause (A) above to the Collateral Agent, pursuant to Section 2.11 hereof;
(ix) Reserved; and
(x) the Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of the Collateral DocumentsAgent a valid, subsisting and enforceable first priority perfected security interest in the Borrower’s interest in the Obligor Collateral related to each Receivable being Pledged hereunder on the Borrowing Date (other than with respect to Equipment which has an Amortized Equipment Cost of less than $25,000 and is leased under Dollar Purchase Option Contracts or $50,000 and is leased under FMV Contracts);
(d) No law or regulation shall prohibit, and no order, judgment or decree of any Government Entity shall prohibit or enjoin, the making of such Loans by any Lender in accordance with the provisions hereof; and
(e) The Lenders shall have received and found to be satisfactory with respect to Pledged Receivables being Pledged in connection with the Borrowing, which have been previously pledged to any lender by the Originator, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables.
(f) Unless a credit agreement and/or security agreement, including but not limited to any such agreement with National City Bank, as agent, related to Receivables being Pledged by the Borrower in connection with the Borrowing, shall have provided for an automatic release of the Agent’s or Collateral Agent’s, as applicable, lien and security interest in such Receivables granted thereunder, the applicable agent or lender shall have executed and delivered to the Borrower and the Collateral Agent a partial release letter and the Borrower shall have duly filed with the appropriate filing office a UCC-3 partial release evidencing the release contained in such release letter, in each case in a form satisfactory to the Collateral Agent.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinThe obligation of each Lender to make Loans and of each L/C Issuer to Issue, no Lender shall or cause to be obligated Issued, any Letters of Credit hereunder (including the funding of Loans on the Restatement Date), is subject to fund any Loan, if, as satisfaction of the date thereoffollowing conditions:
(a) any each representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect shall be true and correct in any all material respect respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect no Default or Event of Default shall have occurred and be continuing or shall immediately result after giving effect to Incremental Term Loans, such Loan (or the conditions set forth in Section 2.1(e)(ii)(Aincurrence of such Letter of Credit Obligation) shall not be or have been satisfied; orand the application of the proceeds thereof;
(c) after giving effect to any Revolving Loan (or the incurrence of any Letter of Credit Obligations), the aggregate outstanding amount of the Revolving Loans shall not exceed the Maximum Revolving Loan Balance; and
(d) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan or the incurrence of any Letters of Credit Obligations shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a3.2(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 3.2 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a3.2(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documents.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender Each Borrowing -------------------------------------- (including the initial Borrowing) and each withdrawal from the Collection Account pursuant to clause sixth (b) of Section 3.03(b) to fund additional --------------- --------------- Student Loans (including the acquisition thereof) shall be obligated subject to fund any Loan, if, as of the further conditions precedent that on the date thereofof such Borrowing or withdrawal the following statements shall be true:
(a) any representation or warranty by any Credit Party the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Section 6.01 are ------------ correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations day as though made on and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier dateday and shall be deemed to have been made (and to be correct in all material respects) on such day (and Issuer by accepting the amount of such Borrowing or withdrawal shall be deemed to have certified to such effect), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect no Material Adverse Change in the condition of Issuer or the Master Servicer (or, to Incremental Term LoansIssuer's knowledge, the conditions set forth in Section 2.1(e)(ii)(Aany Sub-Servicer) shall not be or have been satisfied; orhas occurred and is continuing;
(c) no event has occurred and is continuing, or would result from such Borrowing or withdrawal that constitutes an Event of Default or Unmatured Event of Default (and Issuer by accepting the Agent shall not have received a duly completed Notice amount of such Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan or withdrawal shall be deemed to constitutehave certified to such effect);
(d) the Administrator shall have received a pro-forma Coverage Condition Certificate, as substantially in the form of Exhibit 5.02(d), executed by --------------- an authorized officer of Issuer, showing that after giving effect to each proposed Borrowing or withdrawal, the date thereof, Coverage Condition is met;
(ie) a representation the Termination Date shall not have occurred (and warranty Issuer by accepting the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as amount of such date, except Borrowing or withdrawal shall be deemed to the extent that have certified to such representation or warranty expressly relates to an earlier date effect);
(in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (yf) the conditions applicable Sub-Servicers, in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers each case as bailee for the Indenture Trustee for the benefit of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant shall have received the original Student Loan Notes that will be acquired or otherwise financed with the proceeds of such Borrowing or withdrawal;
(g) all conditions precedent to Issuer's acquisition of the Student Loans to be acquired or otherwise funded with the proceeds of such Borrowing or withdrawal (other than the payment of the purchase price therefor) shall have been satisfied;
(h) the Administrator shall have received acknowledgment of releases or termination statements on Form UCC-3 and any other documents necessary to evidence or release any security interest (other than that of the Indenture Trustee) in the Student Loans to be acquired or otherwise funded with the proceeds of such Borrowing or withdrawal, to the Collateral Documentsextent required for any such prior security interest to be terminated;
(i) the Issuer has paid all fees and expenses due hereunder at such time; and
(j) with respect to any Consumer Education Loan, prior to any Borrowing with respect thereto and prior to its inclusion in the calculation of the Coverage Condition, (A) Each Student Loan shall be (1) covered by and serviced in accordance with a Servicing Agreement in form and substance satisfactory to the Administrator and (2) the Administrator shall have received such other opinions, approvals, documents and certificates with respect to such Student Loan as the Administrator shall reasonably request and (B) if such Student Loan has the benefit of a Consumer Education Loan Guaranty Agreement and the Consumer Education Loan Guarantees therefor is XXXX, the Administrator has conducted such due diligence (including visiting the offices of XXXX) as the Administrator shall deem necessary with respect to such Student Loan in its sole discretion.
Appears in 1 contract
Samples: Indenture (Direct Iii Marketing Inc)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Agent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.12(b);
(b) with respect to Incremental Term LoansOn the Borrowing Date of such Borrowing, the conditions set forth in Section 2.1(e)(ii)(A) following statements shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except to or would result from such Borrowing, which constitutes an Early Amortization Event hereunder or an event that but for notice or lapse of time or both would constitute an Early Amortization Event;
(a) the extent that principal amount of such representation or warranty expressly relates to an earlier date Loan being advanced on such Borrowing Date is not less than $250,000 and (in which event such representations b) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of (A) the Borrowing Limit and (yB) the Capital Limit;
(A) the Borrower has delivered to the Agent a copy of the Notice of Borrowing and the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (B) the Borrower has delivered or caused to have been delivered to the Custodian the Notice of Pledge and each item listed in the definition of Receivable File with respect to the Receivables being Pledged hereunder three (3) or, in the case of the initial Borrowing Date hereunder, six (6) Business Days prior to such Borrowing Date, (C) the Contract related to each Receivable being Pledged hereunder on such Borrowing Date has been duly assigned by FCC to the Borrower and duly assigned by the Borrower to the Agent and (D) by 2:30 P.M. (New York City time) on the Business Day immediately preceding such Borrowing Date, a Collateral Receipt from the Custodian confirming that, inter alia, the Receivable Files received on or before such Business Day conform with the Receivables Schedule delivered to the Custodian and the Agent pursuant to Section 2.02;
(v) all terms and conditions of the Purchase and Contribution Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without regard to any determination or agreement made or limitation, the perfection of the Borrower's interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Agent, for the benefit of any Incremental Term Loan under Section 3.3(a)) the Lender, a first priority perfected security interest in such Receivables, Related Security and the Other Conveyed Property related thereto and the proceeds thereof shall have been satisfied made, taken or performed;
(A) the Servicer shall have taken or caused to be taken all steps necessary under all applicable law in order to cause a valid, subsisting and enforceable perfected, first, second, third or fourth priority (as appropriate) security interest to exist in FCC's favor in the Underlying Collateral securing each Receivable related to a Mortgage Contract being Pledged hereunder on such Borrowing Date, (B) FCC shall have assigned such perfected first, second, third or fourth priority (as appropriate) security interest in the Underlying Collateral related to a Mortgage Contract referred to in clause (A) above (and all proceeds thereof) to the Borrower pursuant to the Purchase and Contribution Agreement and (iiC) the Borrower shall have assigned such perfected first, second, third or fourth priority (as appropriate) security interest in the Underlying Collateral related to a reaffirmation by each Credit Party Mortgage Contract (and the proceeds thereof) referred to in clause (A) above to the Agent, for the benefit of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured PartiesLender, pursuant to Section 2.15 hereof; and
(vii) the Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of the Agent, for the benefit of the Lender, a valid, subsisting and enforceable first priority perfected security interest in each Receivable being Pledged hereunder on such Borrowing Date and the Borrower's interest in the Underlying Collateral Documentsrelated to each Receivable being Pledged hereunder on such Borrowing Date;
(c) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Loans by the Lender in accordance with the provisions hereof;
(d) The Lender shall have received and found to be satisfactory with respect to Pledged Receivables being Pledged in connection with such Borrowing, which have been previously pledged to any lender by FCC, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables; and
(e) After giving effect to such Borrowing, the Sinking Fund Account shall be funded in the amount required under the Sinking Fund Account Agreement.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Us Home Systems Inc /Tx)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Agent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.11(b);
(b) with With respect to Incremental Term Loanssuch Borrowing, at least two (2) Business Days prior to the date of such Borrowing, the conditions set forth Borrower shall have delivered to the Agent, in Section 2.1(e)(ii)(A) form and substance satisfactory to the Agent, an Officer’s Certificate of the Borrower which shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the Facility Amount will not be or have been satisfied; orexceed the Capital Limit;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, both before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except to or would result from such Borrowing, which constitutes an Early Amortization Event hereunder, an event that but for notice or lapse of time or both would constitute an Early Amortization Event, an Event of Default or an Unmatured Event of Default;
(iii) (a) the extent that principal amount of such representation or warranty expressly relates to an earlier date Loan (in which event such representations other than the Loan made on the Closing Date) is at least $500,000 and warranties were true (b) on and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the Facility Amount does not exceed the Capital Limit;
(iv) and (yA) the conditions in this Borrower has delivered to the Agent a copy of the Notice of Borrowing and the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 3.3 2.02, each appropriately completed and executed by the Borrower, (without regard B) the Borrower has delivered or caused to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied delivered to the Custodian the Notice of Pledge and each item required in the definition of Receivable File with respect to the Receivables being Pledged hereunder two (ii2) a reaffirmation by each Credit Party or, in the case of the granting and continuance of Agent’s Liensinitial Borrowing Date hereunder, on behalf of itself and the Secured Partiesfour (4) Business Days, pursuant prior to the Collateral Documents.such Borrowing Date,
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Leasing Income Fund III, L.P.)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on related Borrowing Date, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
(b) the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date);
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(d) the Amortization Date has not occurred;
(e) each of the Borrower, the Servicer and the Custodian shall have timely made all of the deliveries required pursuant to the Custody Agreement with respect to Incremental Term Loansthe Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the Persons providing weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such Incremental Term Loan date) shall be at least 715;
(h) if such date occurs during a Hedging Period, the Borrower shall be in compliance with Section 5.03;
(i) upon the reasonable request of any Lender, the Borrower shall have determined not provided to make such Incremental Term Loan Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing;
(j) the Local Counsel Opinion Requirement shall be satisfied for each Required Local Counsel Jurisdiction as a result of the fact that such representation relevant Borrowing Date; and
(k) The Custodian shall have received an executed copy of (i) the Assignment of Mortgage or warranty is untrue or incorrect unless(ii) the Global Assignment (Bluegreen) delivered to the Administrative Agent, with respect to an Incremental Term Loan the proceeds related Bluegreen Timeshare Loans; provided that for purposes of which are used this clause (k), to finance substantially contemporaneously the extent the Global Assignment (Bluegreen) is delivered to the Custodian, a Limited Condition Acquisitionone-time delivery of such Global Assignment (Bluegreen) shall satisfy the requirements of this clause, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;including for all subsequent fundings; and
(bl) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(ck) the Agent shall not have received receipt of a duly completed Notice Borrowing Request in the form required under Section 2.02(a). Each delivery of a Borrowing in accordance with Section 2.5. The request by Request to the Borrower Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (j) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except (a) The Lenders shall not be required to make any Advance (or any continuation of an existing Borrowing) or issue a Letter of Credit, unless on the applicable Borrowing Date:
(i) all of the matters described in Section 3.1 have been satisfied, and, after the Merger, all of the matters described in Section 3.2 have been satisfied.
(ii) the Agent shall have received notice of Borrower's request for the Advance with respect thereto as otherwise expressly provided hereinin Sections 8.2 and 8.13, no Lender if applicable, and such other approvals, opinions or documents as the Agent may reasonably request;
(iii) the representations and warranties of the Borrower contained in Article 11 hereof are true and correct as of such Borrowing Date; provided, however, that for the purposes hereof, (A) from and after the date of delivery by the Borrower pursuant to Section 12.4 (a) of their consolidated financial statements for the year ended December 31, 1996, the references in Section 11.3(a) to "Audited Financial Statements" shall be obligated deemed to fund any Loan, if, be references to the annual audited financial statements most recently delivered by the Borrower pursuant to Section 12.4(a) as of the date thereof:
of the request for an Advance; and (aB) any representation from and after that date of delivery by the Borrower pursuant to Section 12.4(b) of their financial statements for the period ended October 31, 1996, the references in Section 11.3(b) to "Unaudited Financial Statements" shall be deemed to be references to the monthly or warranty quarterly unaudited financial statements most recently delivered by any Credit Party contained herein the Borrower pursuant to Sections 12.4(b) or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained thereinc) as of the date of that request for an Advance;
(iv) All legal matters incident to the making of such Advance shall be satisfactory to the Lenders and their counsel;
(v) The Agent shall have prepared a current Construction Status Report and a current Collateral Base Certificate from Borrower;
(vi) There exists no Event of Default or Unmatured Default; 24
(vii) The making of the Advance will not cause the outstanding principal amount of the Construction Line to exceed the Collateral Base or the Construction Line Commitment, or the making of the Advance will not cause the outstanding principal amount of the Guidance Loans, plus any outstanding Letter of Credit commitments, plus the applicable interest reserves, to exceed the Guidance Line Commitment, as applicable, nor will the making of the Advance result in any Event of Default or Unmatured Default;
(viii) Each Subsidiary of any member of the Obligated Group shall have executed and delivered to Agent a Guaranty in form and substance satisfactory to Lender; and
(ix) If the merger has not occurred on or prior to March 31, 1996, then, on such date, except Individual Guarantors shall contribute as paid-in capital, and/or advance as Subordinated Debt with no interest or principal payments required so long as the Loans are outstanding or Lenders have any obligation to make Advances or issue Letters of Credit, an aggregate amount equal to the extent that such representation greater of (i) $4,000,000 or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained thereinii) as of such earlier date), and with respect to Incremental the then outstanding indebtedness under the Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;Loan.
(b) Each Borrowing Notice with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) each such Advance shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions contained in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) 3 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssatisfied.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on the date of each Borrowing, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party i. the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
ii. the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date);
iii. no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
iv. the Amortization Date has not occurred;
v. each of the Borrower, the Servicer and the Custodian shall have timely made all of the deliveries required pursuant to the Custody Agreement with respect to Incremental Term Loansthe Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
vi. no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, Borrower with respect to an Incremental Term Loan the proceeds of which are used such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to finance substantially contemporaneously a Limited Condition AcquisitionSection 2.15, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveno Borrowing Base Deficiency shall exist;
(b) vii. if any Timeshare Loans are being Transferred to the Borrower with respect the proceeds of such Borrowing, after giving effect to Incremental Term Loanssuch Transfer, the conditions set forth in Section 2.1(e)(ii)(Aweighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall not be or have been satisfied; orat least 715;
(c) viii. if such date occurs during a Hedging Period, the Agent Borrower shall not have received a duly completed Notice of Borrowing be in accordance compliance with Section 2.55.03;
ix. The upon the reasonable request by of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your DB1/ 121185831.1121185831.9 68 customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing; and
x. at least five days prior to any Borrowing, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower. Each delivery of a Borrowing Request to the Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (j) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no No Lender shall be obligated obliged to fund make available any LoanAccommodation (including, ifwithout limitation, any rollovers or continuations (other than continuations as Prime Rate Loans or U.S. Base Rate Loans) of any outstanding Accommodation) under the date thereofCredit unless:
(a) Except for Swingline Loans, the Administrative Agent shall have received the relevant Notice of Availment.
(b) There shall exist no Default or Event of Default on the applicable Borrowing Date and the Accommodation (including, without limitation, any representation rollovers or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication continuations of any materiality qualifier contained thereinoutstanding Accommodation) provided would not result in the occurrence of a Default or an Event of Default, and the Borrower shall have delivered to the Administrative Agent, if so requested by the Administrative Agent, a certificate of a senior officer of the Borrower to such effect.
(c) The representations and warranties repeated pursuant to Section 8.02 shall be true on and as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event applicable Borrowing Date with the same effect as if such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) had been made on and as of such earlier date)the applicable Borrowing Date, and with respect the Borrower shall have delivered to Incremental Term Loansthe Administrative Agent, if so requested by the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as Administrative Agent, a result certificate of a senior officer of the fact that Borrower to such representation or warranty is untrue or incorrect unlesseffect.
(d) All conditions specified in Section 11.01, with respect to an Incremental Term Loan the extent not previously satisfied for any reason, shall have been satisfied.
(e) If the proceeds of which the Accommodation are to be used to finance substantially contemporaneously a Limited Condition Acquisitionfund an Acquisition in whole or in part, and the total purchase price of such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;exceeds Cdn.$100,000,000, then:
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(ci) the Agent shall not have received nature of the business comprised in the Acquisition must be in a duly completed Notice similar line of Borrowing in accordance with Section 2.5. The request business to a business carried on by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, its Subsidiaries taken as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and whole;
(ii) a reaffirmation by each Credit Party all approvals, permits and licenses from all applicable Governmental Authorities and third party contracting parties required to permit such Acquisition to take place have been obtained, except those approvals, permits and licenses which are immaterial to the business being acquired;
(iii) after giving pro forma effect to the Accommodation and the Acquisition the ratio of the granting Borrower's Total Debt to Total Capitalization shall be less than 47% unless the Lenders otherwise consent, such consent not to be unreasonably withheld;
(iv) the following documents in form, substance and continuance of Agent’s Liens, on behalf of itself execution reasonably acceptable to the Lenders shall have been delivered to the Administrative Agent at least three (3) Business Days before the Borrowing Date:
(A) a pro forma Compliance Certificate giving pro forma effect to the Accommodation and the Secured Parties, Acquisition prepared as at the date of the last Compliance Certificate delivered to the Administrative Agent pursuant to Section 9.01(k) executed by a Senior Financial Officer of the Collateral DocumentsBorrower; and
(B) a certificate of a Senior Financial Officer of the Borrower confirming the matters addressed in subclauses 0, 0 and 0 above; and
(v) in the event that the Borrower's debt rating is below BBB(low), any request for Accommodation in excess of $250,000,000 shall require the consent of the Required Lenders.
Appears in 1 contract
Samples: Loan Agreement (MDS Inc)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender (a) The Lenders shall not be obligated required to fund make any Loan, ifunless on the applicable Borrowing Date:
(i) the Agent shall have received notice of Borrower's request for the Advance with respect thereto as provided in Section 2.09(a) and such other approvals, opinions or documents as the Agent may reasonably request; and
(ii) the representations and warranties of the Borrower contained in Article IV hereof are true and correct as of such Borrowing Date; PROVIDED, HOWEVER, that for the purposes hereof, (A) from and after the date of delivery by the Borrower pursuant to Section 6.04(a) of their consolidated financial statements for the year ended November 30, 1995, the references in Section 4.03 to "Audited Financial Statements" shall be deemed to be references to the annual audited financial statements most recently delivered by the Borrower pursuant to Section 6.04(a) as of the date thereof:
of the request for an Advance; and (aB) any representation or warranty from and after that date of delivery by any Credit Party contained herein or the Borrower pursuant to Section 6.04(b) of its consolidated financial statements for the quarter ended August 31, 1995, the references in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained thereinSection 4.03 to "Unaudited Financial Statements" shall be deemed to be references to the quarterly unaudited financial statements most recently delivered by the Borrower pursuant to Section 6.04(b) as of such date, except the date of that request for an Advance; and
(iii) All legal matters incident to the extent that making of such representation Advance shall be satisfactory to the Lenders and their counsel; and
(iv) There exists no Event of Default or warranty expressly relates Unmatured Default; and
(v) The making of the Advance will not cause the outstanding principal amount of the Notes to an earlier date (in which event such representations and warranties were untrue or incorrect exceed the Borrowing Base, nor will the making of the Advance result in any material respect (without duplication Event of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation Default or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;Unmatured Default.
(b) Each Borrowing Notice with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) each such Advance shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided all of the conditions contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) 5.02 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssatisfied.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on related Borrowing Date, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
(b) the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(d) the Agent Amortization Date has not occurred;
(e) each of the Borrower, the Servicer and the Custodian shall not have received timely made all of the deliveries required pursuant to the Custody Agreement with respect to the Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall be at least 715;
(h) if such date occurs during a duly completed Notice of Borrowing Hedging Period, the Borrower shall be in accordance compliance with Section 2.5. The 5.03;
(i) upon the reasonable request by of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing;
(j) the Local Counsel Opinion Requirement shall be satisfied for each Required Local Counsel Jurisdiction as of the relevant Borrowing Date; and
(k) the receipt of a Borrowing Request in the form required under Section 2.02(a); and .
(l) at least five days prior to any Borrowing, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower. Each delivery of a Borrowing Request to the Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (j) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinEach Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower, no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on the date of each Borrowing, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
(b) the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(d) the Agent Amortization Date has not occurred;
(e) each of the Borrower, the Servicer and the Custodian shall not have received timely made all of the deliveries required pursuant to the Custody Agreement with respect to the Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall be at least 700; and
(h) if such date occurs during a duly completed Notice of Borrowing Hedging Period, the Borrower shall be in accordance compliance with Section 2.55.03. The request by Each delivery of a Borrowing Request to the Borrower Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (f) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
Appears in 1 contract
Samples: Receivables Loan Agreement (Hilton Worldwide Holdings Inc.)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from a Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Agent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.11(b);
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or[Reserved];
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, both before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date, except to the extent that such unless a particular representation or warranty expressly relates speaks to an earlier date a particular date;
(ii) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and the Program Termination Date shall not have occurred;
(iii) (a) the principal amount of such Borrowing is at least $2,000,000 (or, in which event such representations the case of the initial Borrowing to be made hereunder, at least $12,000,000) and warranties were true (b) on and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of (A) the Borrowing Limit and (yB) the Capital Limit;
(A) the Borrower has delivered to the Agent a copy of the Notice of Borrowing, Borrowing Base Certificate and the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (B) the Borrower has delivered or caused to have been delivered to the Custodian the Notice of Pledge and each item required in the definition of Receivable File with respect to the Receivables being Pledged hereunder three or, in the case of the initial Borrowing Date hereunder, four Business Days, prior to such Borrowing Date, (C) the Contract related to each Receivable being Pledged hereunder on such Borrowing Date has been duly assigned by Xxxxxx to the Borrower and duly assigned by the Borrower to the Agent and (D) by 3:00 P.M. (New York City time) on the Business Day immediately preceding such Borrowing Date, a Collateral Receipt from the Custodian confirming that, inter alia, the Receivable Files received on or before such Business Day conform with the Receivables Schedule has been delivered to the Custodian and the Agent pursuant to Section 2.02.
(v) all terms and conditions of the Purchase and Contribution Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without regard to any determination or agreement made or limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Agent, for the benefit of any Incremental Term Loan under Section 3.3(a)) the Secured Parties, a first priority perfected security interest in all of the Collateral have been satisfied completed;
(A) Xxxxxx shall have taken or caused to be taken all steps necessary under all applicable law (including the filing of an Obligor Financing Statement) in order to cause a valid, subsisting and enforceable perfected, first priority security interest (or back-up security interest in the case of the Equipment subject to a true lease) to exist in Marlin’s favor as against the related Obligor in the Equipment securing each Receivable being Pledged hereunder on such Borrowing Date and immediately prior to the Pledge of such Receivable by the Borrower to the Agent (for the benefit of the Secured Parties), (B) Xxxxxx shall have assigned such perfected security interests in the Equipment referred to in clause (A) above (and all proceeds thereof) to the Borrower pursuant to the Purchase and Contribution Agreement and (iiC) a reaffirmation by each Credit Party the Borrower shall have assigned such perfected security interests referred to in clause (A) above to the Agent, for the benefit of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to Section 2.11 hereof; and
(vii) the Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of the Agent, for the benefit of the Secured Parties, a valid, subsisting and enforceable first priority perfected security interest in the Borrower’s right, title and interest in the Collateral.
(d) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Loans by the Lenders in accordance with the provisions hereof;
(e) The Agent shall have received and found to be satisfactory with respect to any Pledged Receivables being Pledged in connection with such Borrowing (which were previously pledged to any lender or other financial institutions by Xxxxxx, the Borrower or any Affiliate thereof under any other financing facility), evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables;
(f) A Qualifying Interest Rate Hedge with respect to such Borrowing with a notional amount not less than 100% of the Loan to be made on such Borrowing Date, in form and substance satisfactory to the Agent, shall have been duly executed by the Borrower and a Qualifying Hedge Counterparty, and any amounts required to have been paid thereunder as of the related Borrowing Date shall have been paid by the Borrower and any obligations required to have been performed thereunder as of such Borrowing Date shall have been performed; and
(g) The Borrower shall have delivered to the Agent a copy of the executed Assignment (as defined in the Purchase and Contribution Agreement) relating to the Collateral Documentsrelating to such Borrowing.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Marlin Business Services Corp)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Borrower shall have delivered to the extent Agent, in form and substance satisfactory to the Agent, the most recent Monthly Remittance Report required by the terms of Section 6.12(b) (it being understood that such representation or warranty expressly relates any Borrowing secured by Prime Receivables after the Amendment Closing Date, shall require that the Borrower, the Agent and the Backup Servicer shall have agreed on a revised form of Monthly Remittance Report, reasonably acceptable to an earlier date (in which event such representations the Agent and warranties were untrue or incorrect in the Backup Servicer, that reflects any material respect (without duplication of any materiality qualifier contained therein) as necessary revisions from the form attached to the Existing RLSA, associated with the inclusion of such earlier datePrime Receivables), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) With respect to such Borrowing, at least two Business Days prior to the date of such Borrowing, the Borrower shall have delivered to the Agent, in form and substance satisfactory to the Agent, (i) the related Borrowing Base Certificate (it being understood that any Borrowing secured by Prime Receivables after the Amendment Closing Date, shall require the delivery of a Borrowing Base Certificate in a revised form reasonably acceptable to the Agent that reflects any necessary revisions from the form attached to the Existing RLSA, associated with the inclusion of such Prime Receivables), and (ii) a certificate signed by the chief financial officer of the Borrower which shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the Facility Amount will not exceed the lesser of (A) the Borrowing Limit and (B) the Capital Limit or, in the alternative, the Notice of Borrowing delivered with respect to Incremental Term Loanssuch Borrowing shall have been signed by the chief financial officer of the Borrower and shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the conditions set forth in Section 2.1(e)(ii)(AFacility Amount will not exceed the lesser of (A) shall not be or have been satisfied; orthe Borrowing Limit and (B) the Capital Limit;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true, and the Borrower and acceptance by accepting the Borrower amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except or would result from such Borrowing, which constitutes an Early Amortization Event hereunder or an event that but for notice or lapse of time or both would constitute an Early Amortization Event;
(iii) (a) the principal amount of the Loan being borrowed on such Borrowing Date does not exceed the Advance Amount with respect to such Loan, (b) the extent that amount of the Borrowing being made on such representation or warranty expressly relates to an earlier date Borrowing Date is not less than $250,000 and (in which event such representations c) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the aggregate outstanding principal amount of the Loans do not exceed the lesser of (A) the Borrowing Limit and (yB) the Capital Limit;
(A) the Borrower has delivered to the Agent a timely copy of the Notice of Borrowing and the Notice of Pledge (together with the attached Receivables Schedule), pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (B) the Borrower has delivered or caused to have been delivered to the Custodian each item listed in the definition of Specified Document File, with respect to the Receivables being Pledged hereunder four (4) Business Days prior to such Borrowing Date, (C) the Contract related to each Receivable being Pledged hereunder on such Borrowing Date has been duly assigned by EEF to the Borrower and duly assigned by the Borrower to the Agent and (D) by 2:30 P.M. (New York City time) on the Business Day immediately preceding such Borrowing Date, a Collateral Receipt from the Custodian has been delivered to the Agent confirming that, inter alia, the Specified Document Files received on such Business Day conform with the Receivables Schedule delivered to the Custodian and the Agent pursuant to Section 2.02; and
(v) all terms and conditions of the applicable Transfer and Contribution Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property related thereto), including, without regard to any determination or agreement made or limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Agent, for the benefit of the Lender, a first priority perfected security interest in such Receivables and the Other Conveyed Property related thereto and the proceeds thereof shall have been made, taken or performed;
(d) No law or regulation shall prohibit, and no order, judgment or decree of any Incremental Term Loan federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Loans by the Lender in accordance with the provisions hereof;
(e) The Lender shall have received and found to be satisfactory with respect to Pledged Receivables being Pledged in connection with such Borrowing, which have been previously pledged to any lender by EEF, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables; and
(f) If required by the Agent and the Hedging Condition shall then exist, a Qualifying Interest Rate Hedge with respect to such Borrowing or as otherwise would be required under Section 3.3(a)) 6.22 in respect of, collectively, such Borrowing and all other Loans outstanding, shall have been satisfied duly executed by the Borrower and (ii) a reaffirmation by each Credit Party Qualifying Hedge Counterparty, and any amounts required to have been paid thereunder as of the granting related Borrowing Date shall have been paid and continuance any obligations required to have been performed thereunder as of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssuch Borrowing Date shall have been performed.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Mru Holdings Inc)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from the Lender shall be subject to the further conditions precedent that: No Further Borrowings. Notwithstanding anything to the contrary set forth in this Agreement or any other Transaction Document, under no circumstances shall the Lender be obligated to fund make nor shall the Borrower request, any Loan, if, as of Loan on or after the date thereof:Seventh Amendment Effective Date.
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Lender, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Lender, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.10(b);
(b) After giving effect to such Borrowing requested by the Borrower the following statements shall be true (and the Borrower shall be deemed to have certified that):
(i) the Facility Amount will not exceed the lesser of the (x) Borrowing Limit and (y) the Borrowing Base;
(ii) the Facility Amount, calculated solely with respect to Incremental Term LoansLoans secured by Pool A Receivables, will not exceed the conditions set forth in Section 2.1(e)(ii)(APool A Borrowing Base; and
(iii) shall the Facility Amount, calculated solely with respect to Loans secured by Pool B Receivables, will not be or have been satisfied; orexceed the Pool B Borrowing Base;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have represented that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except or would result from such Borrowing, which constitutes a Program Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Program Termination Event;
(iii) with respect to any Borrowing of a Pool A Loan, no event has occurred and is continuing, or would result from such Borrowing, which constitutes a Pool A Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Pool A Termination Event;
(iv) with respect to any Borrowing of a Pool B Loan, no event has occurred and is continuing, or would result from such Borrowing, which constitutes a Pool B Termination Event with respect to the extent Underlying Originator related to the Pool B Receivable securing such Pool B Loan or an event that but for notice or lapse of time or both would constitute such representation or warranty expressly relates to an earlier date a Pool B Termination Event;
(in which event v) the principal amount of such representations Loan being advanced on such Borrowing Date is not less than $500,000, (b) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of (A) the Borrowing Limit and (yB) the conditions in this Section 3.3 Borrowing Base, (without regard c) on and as of such Borrowing Date, after giving effect to any determination or agreement made or such Borrowing, the aggregate Facility Amount hereunder, calculated solely with respect to be made Loans secured by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied Pool A Receivables, does not exceed the Pool A Borrowing Base, and (iid) a reaffirmation on and as of such Borrowing Date, after giving effect to such Borrowing, the aggregate Facility Amount hereunder, calculated solely with respect to Loans secured by each Credit Party of Pool B Receivables, does not exceed the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documents.Pool B Borrowing Base;
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Borrower shall have delivered to the extent Agent, in form and substance satisfactory to the Agent, the most recent Monthly Remittance Report required by the terms of Section 6.12(b) (it being understood that such representation or warranty expressly relates any Borrowing secured by New PrePrime Receivables after the Amendment No. 2 Closing Date, shall require that the Borrower, the Agent and the Backup Servicer shall have agreed on a revised form of Monthly Remittance Report, reasonably acceptable to an earlier date (in which event such representations the Agent and warranties were untrue or incorrect in the Backup Servicer, that reflects any material respect (without duplication of any materiality qualifier contained therein) as necessary revisions from the form attached to the Existing RLSA, associated with the inclusion of such earlier dateNew PrePrime Receivables), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) With respect to such Borrowing, at least two Business Days prior to the date of such Borrowing, the Borrower shall have delivered to the Agent, in form and substance satisfactory to the Agent, (i) the related Borrowing Base Certificate (it being understood that any Borrowing secured by New PrePrime Receivables after the Amendment No. 2 Closing Date, shall require the delivery of a Borrowing Base Certificate in a revised form reasonably acceptable to the Agent that reflects any necessary revisions from the form attached to the Existing RLSA, associated with the inclusion of such New PrePrime Receivables), and (ii) a certificate signed by the chief financial officer of the Borrower which shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the Facility Amount will not exceed the lesser of (A) the Borrowing Limit and (B) the Capital Limit or, in the alternative, the Notice of Borrowing delivered with respect to Incremental Term Loanssuch Borrowing shall have been signed by the chief financial officer of the Borrower and shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the conditions set forth in Section 2.1(e)(ii)(AFacility Amount will not exceed the lesser of (A) shall not be or have been satisfied; orthe Borrowing Limit and (B) the Capital Limit;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true, and the Borrower and acceptance by accepting the Borrower amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) (A) no event has occurred and is continuing, except or would result from such Borrowing, which constitutes an Early Amortization Event hereunder or an event that but for notice or lapse of time or both would constitute an Early Amortization Event (other than in either case a Single Type Early Amortization Event), and (B) if a Single Type Early Amortization Event has occurred or would so occur, any Pledged Receivables being acquired in connection with such Borrowing are solely Eligible Receivables of the Unaffected Type);
(iii) (a) the principal amount of the Loan being borrowed on such Borrowing Date does not exceed the Advance Amount with respect to such Loan, (b) the extent that amount of the Borrowing being made on such representation or warranty expressly relates to an earlier date Borrowing Date is not less than $250,000 and (in which event such representations c) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the aggregate outstanding principal amount of the Loans do not exceed the lesser of (A) the Borrowing Limit and (yB) the Capital Limit;
(A) the Borrower has delivered to the Agent a timely copy of the Notice of Borrowing and the Notice of Pledge (together with the attached Receivables Schedule), pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (B) the Borrower has delivered or caused to have been delivered to the Custodian each item listed in the definition of Specified Document File, with respect to the Receivables being Pledged hereunder four (4) Business Days prior to such Borrowing Date, (C) the Contract related to each Receivable being Pledged hereunder on such Borrowing Date has been duly assigned by EEF to the Borrower and duly assigned by the Borrower to the Agent and (D) by 2:30 P.M. (New York City time) on the Business Day immediately preceding such Borrowing Date, a Collateral Receipt from the Custodian has been delivered to the Agent confirming that, interalia, the Specified Document Files received on such Business Day conform with the Receivables Schedule delivered to the Custodian and the Agent pursuant to Section 2.02; and
(v) all terms and conditions of the applicable Transfer and Contribution Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property related thereto), including, without regard to any determination or agreement made or limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Agent, for the benefit of the Lender, a first priority perfected security interest in such Receivables and the Other Conveyed Property related thereto and the proceeds thereof shall have been made, taken or performed;
(d) No law or regulation shall prohibit, and no order, judgment or decree of any Incremental Term Loan federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Loans by the Lender in accordance with the provisions hereof;
(e) The Lender shall have received and found to be satisfactory with respect to Pledged Receivables being Pledged in connection with such Borrowing, which have been previously pledged to any lender by EEF, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables; and
(f) If required by the Agent and the Hedging Condition shall then exist, a Qualifying Interest Rate Hedge with respect to such Borrowing or as otherwise would be required under Section 3.3(a)) 6.22 in respect of, collectively, such Borrowing and all other Loans outstanding, shall have been satisfied duly executed by the Borrower and (ii) a reaffirmation by each Credit Party Qualifying Hedge Counterparty, and any amounts required to have been paid thereunder as of the granting related Borrowing Date shall have been paid and continuance any obligations required to have been performed thereunder as of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssuch Borrowing Date shall have been performed.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Mru Holdings Inc)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender shall be obligated to fund any Loan, if, as of the date thereof:
(a) The obligation of each Lender to make any representation or warranty by any Credit Party contained herein or in any other Term Loan Document is untrue or incorrect in any material respect on the occasion of each Borrowing (without duplication of any materiality qualifier contained therein) as of such dateincluding the initial Borrowing), except shall be subject to the extent that such representation satisfaction or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing waiver in accordance with Section 2.5. The request by 9.01 hereof of the Borrower further conditions precedent that on the date of such Borrowing:
(i) the following statements shall be true and the acceptance by the Borrower Borrowers of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower Borrowers that both on the date of the applicable Notice of Borrowing and the date of such Borrowing, such statements are true:
(xA) except with respect to Incremental Term Loans if the representations and as applicable as provided in Section 3.3(a) above, warranties of each representation and warranty by any Credit Loan Party contained herein or in any other each Loan Document is true and are correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of such date, except before and after giving effect to such Borrowing and to the extent that application of the proceeds therefrom, as though made on and as of such representation date, other than any such representations or warranty expressly relates warranties that, by their terms, refer to an earlier a specific date (other than the date of such Borrowing, in which event case such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier specific date; provided, that any representation or warranty that is qualified by materiality, “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates and
(B) no Default or Event of Default has occurred and (y) the conditions in this Section 3.3 (without regard to any determination is continuing, or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and would result from such Borrowing;
(ii) the Administrative Agent shall have received a reaffirmation by each Credit Party Notice of Borrowing, in form and substance reasonably satisfactory to it; and
(iii) the granting and continuance Borrowers shall have paid (A) to the Administrative Agent, for the benefit of Agent’s Liens, on behalf of itself and the Secured Parties, all accrued and unpaid fees and expenses due to the Secured Parties in connection with the transactions contemplated by the Loan Documents (including accrued and unpaid fees and expenses described in any fee letters executed by the Borrowers in connection with this Agreement or in connection with any Lender’s commitment to provide financing under the Facility), (B) to legal counsel and financial advisers to the Required Prepetition Lenders (including, without limitation, Special Counsel, the Financial Advisor, Stikeman Elliott LLP, as Canadian counsel and Xxxxxxxxx Xxxxx Xxxxx & Xxxxx LLP, as Delaware counsel), all accrued and unpaid fees and expenses then due and payable to each of them under or in connection with the Prepetition Loan Documents and the refinancing or restructuring of the financing thereunder in the nature of a “work-out” or other similar proceeding involving creditors’ rights generally and any proceeding ancillary thereto (including, without limitation, the Cases), in the case of each of (A) and (B), regardless of whether any grace period under the agreements pursuant to which the Collateral Documentsapplicable fees and expenses are payable has expired; provided, that all payment in the case of (B) shall be made as provided in the Order as approved by the Bankruptcy Court on the Petition Date; and
(iv) the Administrative Agent shall have received such other approvals, opinions or documents as the Required Lenders through the Administrative Agent may reasonably request.
(b) Each Borrowing hereunder shall constitute a representation and warranty by the Borrowers as of the date of such Borrowing that the conditions contained in this Section 3.03 have been satisfied.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (TLC Vision Corp)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no (a) No Lender shall be obligated required to fund make any LoanFacility B Advance (other than an Advance that, ifafter giving effect thereto and to the application of the proceeds thereof, does not increase the aggregate amount of outstanding Facility B Advances), unless on the applicable Borrowing Date:
(i) the Agent shall have received notice of Borrower's request for the Facility B Advance as provided in Section 2.06(a) and such other approvals, opinions or documents as the Agent may reasonably request;
(ii) the representations and warranties of the Borrower contained in Article IV hereof are true and correct as of such Borrowing Date or Issuance Date; PROVIDED, HOWEVER, that for the purposes hereof, (A) from and after the date of delivery by the Borrower pursuant to Section 6.04(a) of their consolidated financial statements for the year ended November 30, 41 1997, the references in Section 4.03 to "Audited Financial Statements" shall be deemed to be references to the annual audited financial statements most recently delivered by the Borrower pursuant to Section 6.04(a) as of the date thereof:
of the request for a Facility B Advance and (aB) any representation or warranty from and after that date of delivery by any Credit Party contained herein or the Borrower pursuant to Section 6.04(b) of its consolidated financial statements for the quarter ending November 30, 1997, the references in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained thereinSection 4.03 to "Unaudited Financial Statements" shall be deemed to be references to the quarterly unaudited financial statements most recently delivered by the Borrower pursuant to Section 6.04(b) as of such date, except the date of that request for a Facility B Advance;
(iii) All legal matters incident to the extent that making of such representation Advance shall be satisfactory to the Lenders and their counsel;
(iv) There exists no Event of Default or warranty expressly relates to an earlier date Unmatured Default; and
(in which event such representations and warranties were untrue or incorrect v) The making of the Facility B Advance will not result in any material respect (without duplication Event of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation Default or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;Unmatured Default.
(b) Each Borrowing Notice with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) each such Facility B Advance shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions contained in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) 5.02 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssatisfied.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender No Loans shall be obligated made (or deemed made) at any time, and the Lenders shall not be required to fund any LoanLoan requested by the Borrower, ifunless, as in each case, the following conditions are satisfied (or waived by the Administrative Agent and the Required Lenders) prior to (or concurrently with) the making (or deemed making) of such Loan on the date thereofBorrowing Date relating thereto:
(a) any representation 6.2.1 The Closing Date shall have occurred. No Default or warranty by any Credit Party contained herein Event of Default shall exist at the time of, or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as immediately result from, the making of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such Loan.
6.2.2 The representations and warranties were untrue or incorrect of each Obligor in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan Documents shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication or, with respect to representations and warranties qualified by materiality, in all respects) on the date of, and upon giving effect to, the making of such Loan (except for representations and warranties that expressly relate to an earlier date).
6.2.3 There shall be an Approved Budget in full force and effect on and as of each of (a) the Borrowing Date for such Loan and (b) the time that such Loan is funded;
6.2.4 The Interim DIP Order (in the case of Loans made prior to the entry of the Final DIP Order) or the Final DIP Order (in the case of Loans made after the entry of the Final DIP Order) (a) shall be in full force and effect, (b) shall not have been reversed, vacated or stayed, (c) shall not have become the subject of any materiality qualifier contained thereinappeal or challenge, and (d) shall not have been amended, supplemented or otherwise modified without the prior written consent of the Required Lenders.
6.2.5 The Restructuring Support Agreement shall be in full force and effect, and no Termination Event (as defined in the Restructuring Support Agreement) or notice delivered by any party thereto in respect thereof shall have occurred or be continuing.
6.2.6 The making of such dateLoan shall not violate any Applicable Laws and shall not be enjoined, temporarily, preliminarily or permanently.
6.2.7 There shall not have occurred since the Petition Date any development or event which, individually or in the aggregate with other such circumstances, has had or could reasonably be expected to have, a Material Adverse Effect (except to the extent that relating to the Chapter 11 Cases).
6.2.8 In the case of a Borrowing of any New Money Loans, in addition to the above, the following shall be satisfied (or waived as provided herein):
(a) the aggregate principal amount of all New Money Loans requested by the Borrower on such representation or warranty expressly relates Borrowing Date shall not exceed the amount identified in the Approved Budget as being required by the Obligors and their Subsidiaries to an earlier date finance disbursements due and payable within the full four week period following such Borrowing Date as set forth in the Approved Budget (unless such Lender consents thereto);
(b) the making of such New Money Loans, and the use of proceeds therefrom, shall comply with the Approved Budget and with this Agreement in all respects;
(c) the applicable Lender shall not have advanced New Money Loans on more than one other occasion during the calendar week in which event the Borrowing Date for such representations New Money Loans shall occur (unless such Lender consents thereto);
(d) the Administrative Agent shall have received a Notice of Borrowing in connection with the applicable New Money Loans in accordance with the requirements of this Agreement; and
(e) the Administrative Agent shall have received evidence (which may be included in the applicable Notice of Borrowing, or delivered separately in writing) demonstrating that on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier datethe time of delivery of the Notice of Borrowing for the applicable New Money Loan, and immediately prior to the incurrence thereof, the aggregate amount of Liquidity. Each Notice of Borrowing (or, in the case of the Borrowing of Loans not constituting New Money Loans, each deemed request by the Borrower for a Loan) shall constitute a representation by the Borrower that the foregoing conditions are satisfied on and as of each of (yi) the conditions in this Section 3.3 date of such Notice of Borrowing (without regard to any determination or agreement made or to be made by Agent or providers the date of any Incremental Term Loan under Section 3.3(asuch deemed request)) have been satisfied and , (ii) a reaffirmation by each Credit Party of the granting requested Borrowing Date, and continuance of Agent’s Liens(iii) the date on which such Loan is funded or made (or deemed funded or made, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsas applicable).
Appears in 1 contract
Samples: Loan and Security Agreement (Core Scientific, Inc./Tx)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on related Borrowing Date, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
(b) the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(d) the Agent Amortization Date has not occurred;
(e) each of the Borrower, the Servicer and the Custodian shall not have received timely made all of the deliveries required pursuant to the Custody Agreement with respect to the Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall be at least 715;
(h) if such date occurs during a duly completed Notice of Borrowing Hedging Period, the Borrower shall be in accordance compliance with Section 2.5. The 5.03;
(i) upon the reasonable request by of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing;
(j) the Local Counsel Opinion Requirement shall be satisfied for each Required Local Counsel Jurisdiction as of the relevant Borrowing Date;
(k) the receipt of a Borrowing Request in the form required under Section 2.02(a); and
(l) at least five days prior to any Borrowing, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower. Each delivery of a Borrowing Request to the Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (j) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
Appears in 1 contract
Samples: Receivables Loan Agreement (Hilton Grand Vacations Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender shall be obligated to fund any Loan, if, as The obligation of the Lenders to make any Borrowing under the Term Facility on any disbursement date thereofwill be subject to the prior satisfaction by the Borrower of each of the following conditions precedent, to the satisfaction of the Lenders:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as The Borrower will have delivered to the Agent a timely notice of such date, except to the extent that such representation or warranty expressly relates to an earlier date (Borrowing in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and accordance with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 2.4;
(b) with respect to Incremental Term Loans, the conditions The requirements set forth out in Section 2.1(e)(ii)(A2.3(b) shall not be or have been satisfied, namely:
(i) The Borrower has not requested more than four Borrowings (including the requested Borrowing);
(ii) The proposed date of the requested Borrowing is before the Drawdown Outside Date; orand
(iii) The date of the last Borrowing advanced to the Borrower was at least three months prior to the date for the requested Borrowing.
(c) At least five Business Days prior to the date of the requested Borrowing, the Agent shall not will have received received, in form and substance satisfactory to the Lenders, a duly completed Notice certificate, setting forth or attaching the following:
(i) an updated 13-Week Cash Flow showing the liquidity requirements for the next 13-week period following the disbursement date and confirming that such liquidity (in addition to the proceeds from the Borrowing) will be sufficient to meet the liquidity requirements of Borrowing the Borrower for such period;
(ii) an update of the Multi-Year Business Plan as of the end of the most recently ended Fiscal Quarter of the Borrower;
(iii) that all taxes, assessments and governmental charges or levies imposed on it or on its income or assets have been paid when due (except for any such taxes, assessments, charges or levies that are being diligently disputed by the Borrower in good faith and for which appropriate reserves have been taken in accordance with Section 2.5. The request by GAAP);
(iv) that no Default or Event of Default (including no Material Adverse Change) has occurred and is continuing or will occur as a result of such Borrowing and the Borrower will have certified as such; and
(v) that all representations and acceptance by warranties set forth in Article 8 hereof and in the Borrower of the proceeds of any Loan other Credit Documents shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication on and as of any materiality qualifier contained therein) the date of such Borrowing with the same effect as though made on and as of such date, except to and the extent Borrower will have certified such;
(d) the Lenders will be satisfied that there exists no “Default” or “Event of Default” (as such representation terms are defined in the Senior Credit Agreement) and that no “Default” or warranty expressly relates to an earlier date “Event of Default” (as such terms are defined in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained thereinthe Senior Credit Agreement) will occur as a result of such earlier date) Borrowing and the Borrower will have certified as such; and
(ye) the conditions in this Section 3.3 (without regard to any determination Lenders will be satisfied that there has been no Material Adverse Change since the Effective Date or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liensprevious disbursement date, on behalf of itself as applicable, and the Secured Parties, pursuant to the Collateral DocumentsBorrower will have certified as such.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinbelow, no each Borrowing (including the initial Borrowing) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Agent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.11(b);
(b) with With respect to Incremental Term Loanssuch Borrowing, at least one Business Day prior to the date of such Borrowing, the conditions set forth Servicer shall have delivered to the Agent, in Section 2.1(e)(ii)(Aform and substance satisfactory to the Agent, a certificate signed by an officer of the Borrower having responsibility for financial matters of the Borrower which shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the Facility Amount will not exceed the lesser of the (i) shall not be or have been satisfied; orBorrowing Limit minus the Discount Amount and (ii) the Capital Limit;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true, and the Borrower and acceptance by accepting the Borrower amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except to the extent or would result from such Borrowing, which constitutes an Early Amortization Event hereunder, or an event that such representation but for notice or warranty expressly relates to lapse of time or both would constitute an earlier date Early Amortization Event;
(in which event such representations iii) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateday, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of (x) the Borrowing Limit minus the Discount Amount and (y) the conditions in this Capital Limit;
(A) the Borrower has delivered to the Agent a timely copy of the Notice of Borrowing and the Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 3.3 2.02, each appropriately completed and executed by the Borrower, (without regard B) (1) the Borrower has delivered or caused to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied delivered to the Custodian the Notice of Pledge (together with the attached Receivables Schedule) related to the Receivables being Pledged hereunder on such Borrowing Date and the Receivable File with respect to each Pledged Receivable being Pledged hereunder on such Borrowing Date, (2) the Pledged Receivables being Pledged hereunder on such Borrowing Date are duly endorsed and duly assigned by any Previous Lender to SRI, by SRI to the Borrower and duly endorsed and duly assigned by the Borrower to the Agent and (ii3) a reaffirmation the Mortgages related to each Receivable being Pledged hereunder on such Borrowing Date, assignments thereof by each Credit Party of the granting and continuance of Agent’s Liensany Previous Lender to SRI, on behalf of itself and the Secured Parties, pursuant by SRI to the Collateral Documents.Borrower and assignments thereof by the Borrower to the Agent have all been duly recorded in the appropriate recording offices, and (C) the Custodian has delivered to the Agent by 11:30 A.M.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Silverleaf Resorts Inc)
Conditions Precedent to All Borrowings. Except Conditions Precedent to All Borrowings. Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on the date of each Borrowing, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveServicing Agreement;
(b) with respect to Incremental Term Loans, the conditions set forth representations and warranties contained in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan Article IV shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were by their terms refer to an earlier date, in which case they shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of such earlier date;
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(yd) the conditions in this Section 3.3 Amortization Date has not occurred;
(without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)e) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s LiensBorrower, on behalf of itself the Servicer and the Secured Parties, Custodian shall have timely made all of the deliveries required pursuant to the Collateral DocumentsCustody Agreement with respect to the Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall be at least 700; and
(h) if such date occurs during a Hedging Period, the Borrower shall be in compliance with Section 5.03.5.03;
(i) upon the reasonable request of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing;
(j) if any Timeshare Loans for which the applicable Timeshare Interest relates to the “Hilton Grand Vacations at the Crane” Resort are being transferred to the Borrower with the proceeds of such Borrowing, the Barbados Activation Date has occurred;
(k) if any Timeshare Loans for which the applicable Timeshare Interest relates to the “Hilton Grand Vacations Chicago Downtown / Magnificent Mile” Resort are being transferred to the Borrower with the proceeds of such Borrowing, the Chicago Activation Date has occurred; and
(l) at least five days prior to any Borrowing, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower.
Appears in 1 contract
Samples: Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.)
Conditions Precedent to All Borrowings. Except Each Lender’s obligation to fund, and Administrative Agent’s obligation to disburse, any Borrowing (including the Initial Borrowing and the Final Borrowing) is subject to satisfaction, or waiver by Administrative Agent as otherwise expressly provided hereinpermitted by Section 10.3, no Lender of the following conditions precedent (which, in the case of reports or other deliverables, shall be obligated in form and substance satisfactory to fund any Loan, if, Administrative Agent and shall have been provided on a timely basis with a reasonable opportunity to review):
(a) The representations and warranties in Article IV shall be correct as of the date thereof:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) the Borrowing as though made as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event except for such representations and warranties were untrue changes as may arise by virtue of events or incorrect in any material respect (without duplication circumstances permitted by the terms of any materiality qualifier contained therein) as of such earlier datethis Agreement), and with respect Administrative Agent shall have received a certificate to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;effect signed by Borrower.
(b) No Default or Event of Default shall remain uncured or shall result from such Borrowing
(c) All Benchmark Certificates required by Administrative Agent have been delivered to Administrative Agent.
(d) Such reports of the Inspecting Engineer, General Contractor, Architect or others with respect to Incremental Term Loansthe progress or condition of the Project and such other matters as Administrative Agent shall reasonably require.
(e) Administrative Agent shall be reasonably satisfied, based on its own inspections or other reliable information (including, without limitation, the reports of the Inspecting Engineer, Borrower and other third parties referenced elsewhere in this Section 3.2), that the development of the Project is in accordance with the terms of this Agreement.
(f) Administrative Agent shall have received, at Borrower’s sole expense, in form and substance satisfactory to Administrative Agent, from the title insurer who issued the Title Policy, all endorsements, binders and modifications thereto then reasonably required by Administrative Agent.
(g) Administrative Agent shall not have made a determination that Borrower is required to deposit additional Equity pursuant to Section 2.10(c) that has not yet been deposited as provided therein.
(h) Such Control Agreements as required the terms of this Agreement shall have been properly executed and delivered by all applicable parties.
(i) If such Borrowing is the Final Borrowing, each of the conditions set forth in Section 2.1(e)(ii)(A2.8(b) shall not be is true or have has been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documents.
Appears in 1 contract
Samples: Construction Loan Agreement (Great Wolf Resorts, Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender Each Borrowing (including the initial Borrowing) hereunder shall be obligated subject to fund any Loan, if, as of the further conditions precedent that on the date thereof:of such Borrowing the following statements shall be true (and Borrower by accepting the amount of such Borrowing shall be deemed to have certified that):
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect contained in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), Sections 6.01 and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which 6.02 are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations day as though made on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) day (and (y) the conditions in this Section 3.3 (without regard shall be deemed to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied made on such day),
(b) no event has occurred and is continuing, or would result from such Borrowing, that constitutes an Event of Default, Servicer Event of Default or Unmatured Event of Default,
(c) after giving effect to each proposed Borrowing, (i) no Borrowing Base Deficiency will exist and (ii) a reaffirmation by each the Aggregate Letter of Credit Party Stated Amount is at least equal to the Letter of Credit Required Amount,
(d) the granting and continuance of Agent’s LiensTermination Date has not occurred,
(e) the Administrator shall have delivered, on behalf of itself the Borrower, an executed Borrowing Notice (certified by the Controller or Chief Financial Officer of the Administrator) to the Administrative Agent,
(f) the Servicer shall have delivered to the Administrative Agent and the Secured PartiesLiquidity Agent (I) a current list stating: (i) the identity of each Transportation Agent (with a contact person and telephone number) and each Armored Car Carrier, pursuant and (ii) the identity of each Processing Agent (with a contact person and telephone number) and (II) execution copies of all agreements relating to the ATMs or the transportation of Cash and proof of the required insurance relating to any new Transportation Agents, Armored Car Carriers or Processing Agents,
(g) the Servicer shall have delivered to the Administrative Agent and the Liquidity Agent copies of such executed written consents and waivers from third parties as the Collateral DocumentsAgent may reasonably request shall be necessary to ensure the Collateral Agent's or each Transportation Agent's unfettered access to the Cash;
(h) no law, rule or regulation shall prohibit and no order, judgment or decree of any Governmental Authority shall prohibit or enjoin the making of such Borrowing; and
(i) the Administrative Agent and Liquidity Agent shall have received such other approvals, opinions and documents as they may reasonably request.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no Lender explicitly set forth below) by the Borrower from the Lenders shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loanssuch Borrowing, at least two (2) Business Days prior to the date of such Borrowing, the Persons providing such Incremental Term Loan Borrower shall have determined not delivered to make such Incremental Term Loan as the Administrative Agent, in form and substance reasonably satisfactory to the Administrative Agent, a result Borrowing Base Certificate and a certificate signed by an authorized signatory of the fact that Borrower (which authorized signatory has reviewed documents sufficient to provide a basis for such representation or warranty is untrue or incorrect unlesscertification) which shall demonstrate that, with respect after giving effect to an Incremental Term Loan such Borrowing requested by the proceeds Borrower, (i) the Loans Outstanding does not exceed the lesser of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations (A) the Maximum Commitment Amount and warranties were true and correct at (B) the time the Limited Condition Acquisition Agreement was executed and effectiveBorrowing Base;
(b) with respect to Incremental Term Loanson the Borrowing Date of such Borrowing, the conditions set forth in Section 2.1(e)(ii)(A) following statements shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation all Transaction Documents remain the legally valid and warranty binding obligation of each Credit Party thereto and are in full force and effect, enforceable against such Credit Party in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
(ii) the Borrower that (x) except with respect representations and warranties contained in Sections 4.01 and 4.02 are true and correct in all material respects, both before and after giving effect to Incremental Term Loans if the Borrowing to take place on such Borrowing Date and to the application of proceeds therefrom, on and as applicable of such Borrowing Date as provided though made on and as of such Borrowing Date; except, in Section 3.3(aeach case, to the extent such representations and warranties (A) abovespecifically relate to an earlier date, each representation in which case such representations and warranty by any Credit Party contained herein or in any other Loan Document is warranties shall have been true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations case may be on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date, or (B) relate to a Receivable that is later required to be repurchased, and is so repurchased, by a Seller in accordance with the Sale and Contribution Agreement after such Borrowing Date;
(iii) no event has occurred and is continuing, or would result from such Borrowing, which constitutes a Material Adverse Effect, Early Amortization Event, Default or an Event of Default;
(iv) the Borrower has delivered to the Administrative Agent and the Lenders a copy of the Notice of Borrowing, the related Transfer Notice (together with the attached Schedule of Receivables) along with the related notice that the Borrower provided to the Seller pursuant to Section 2.01(b) of the Sale and Contribution Agreement, in each case, pursuant to Section 2.01, each appropriately completed and executed by the Borrower;
(v) all terms and conditions of the Sale and Contribution Agreement required to be satisfied in connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Collateral Agent, for the benefit of the Secured Parties, a first priority perfected security interest in each Pledged Receivable, the Related Security, Other Conveyed Property and all other Pledged Assets related thereto and the proceeds thereof, shall have been made, taken or performed;
(vi) immediately prior to the Pledge of such Receivable by the Borrower to the Administrative Agent (for the benefit of the Secured Parties), each applicable Seller shall have assigned such Receivables (and all proceeds thereof) to the Borrower pursuant to the Sale and Contribution Agreement free and clear of any and all Liens (other than Permitted Liens) that would prevent the Secured Parties from having a perfected, first priority security interest in the Receivable;
(vii) the Receivables acquired by the Borrower on such Borrowing Date (x) are Eligible Receivables and (y) the conditions in this Section 3.3 (without regard Merchant related to any determination such Receivable is not located in a jurisdiction that is the subject of a Regulatory Event;
(viii) no law or agreement made regulation shall prohibit, and no order, judgment or to be made by Agent or providers decree of any Incremental Term Loan under Section 3.3(a)federal, state or local court or Government Entity shall prohibit or enjoin, the making of such Loans by the Lenders in accordance with the provisions hereof;
(ix) have been satisfied the Revolving Period Termination Date has not occurred;
(x) no Level I Portfolio Performance Covenant Trigger Event or Level II Portfolio Performance Covenant Trigger Event has occurred and is continuing; and
(iixi) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, Borrowing Date for such Borrowing shall be on behalf of itself and or after the Secured Parties, pursuant to the Collateral DocumentsEffectiveness Date.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Payoneer Global Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinSubject on (x) the Closing Date, no Lender shall be obligated to fund any Loan, if, as of the date thereof:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date)Certain Funds Provision, and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(by) with respect to Incremental any Subsequent Closing, the Subsequent Acquisition Conditions, the conditions to all Revolving Loans, ABL FILO Term Loans, ABL IP Term Loans and Letters of Credit will consist of (a) prior written notice of the conditions set forth in Section 2.1(e)(ii)(A) shall not be request for such Revolving Loans ABL FILO Term Loans, ABL IP Term Loans or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice Letter of Borrowing Credit in accordance with Section 2.5. The request by the Borrower and acceptance by procedures set out in the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereofDocuments, (ib) a representation the accuracy of representations and warranty by warranties in the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct Documents in all material respects (without duplication except where qualified by materiality, then just the accuracy thereof), (c) the absence of any materiality qualifier contained therein) as default or event of default at the time of, and after giving effect to the making of such dateRevolving Loans, except to ABL FILO Term Loans or ABL IP Term Loans or the extent that such representation issuance (or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained thereinamendment or extension) as of such earlier date) Letter of Credit, and (yd) the conditions in this Section 3.3 (without regard after giving effect to any determination or agreement made or to be made by Agent or providers of any Incremental requested Revolving Loan, ABL FILO Term Loan, ABL IP Term Loan under Section 3.3(a)) have been satisfied or Letter of Credit, the outstanding Revolving Loans and (ii) a reaffirmation by each Letters of Credit Party will not exceed the lesser of the granting Maximum Credit or the Borrowing Base; provided that with respect to any Revolving Loan, ABL FILO Term Loan or ABL IP Term Loan used to consummate a Subsequent Closing, the foregoing shall be limited to only the Subsequent Acquisition Conditions (it being understood and continuance agreed that Swing Line Lender may in its sole discretion, in lieu of Agent’s Liensrequesting Lenders to fund any such Revolving Loan or ABL FILO Term Loan, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsfund a Swing Line Loan).
Appears in 1 contract
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no explicitly set forth below) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Agent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.12(b);
(b) After giving effect to such Borrowing requested by the Borrower the following statements shall be true (and the Borrower shall be deemed to have certified that):
(i) the Facility Amount will not exceed the lesser of the (x) Borrowing Limit and (y) the Borrowing Base;
(ii) the Facility Amount, calculated solely with respect to Incremental Term LoansLoans secured by Pool A Receivables, will not exceed the conditions set forth in Section 2.1(e)(ii)(APool A Borrowing Base; and
(iii) shall the Facility Amount, calculated solely with respect to Loans secured by Pool B Receivables, will not be or have been satisfied; orexceed the Pool B Borrowing Base;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true and correct, and the Borrower and acceptance by the Borrower accepting any amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have represented that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except or would result from such Borrowing, which constitutes a Program Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Program Termination Event;
(iii) with respect to any Borrowing of a Pool A Loan, no event has occurred and is continuing, or would result from such Borrowing, which constitutes a Pool A Termination Event hereunder or an event that but for notice or lapse of time or both would constitute a Pool A Termination Event;
(iv) with respect to any Borrowing of a Pool B Loan, no event has occurred and is continuing, or would result from such Borrowing, which constitutes a Pool B Termination Event with respect to the extent Underlying Originator related to the Pool B Receivable securing such Pool B Loan or an event that but for notice or lapse of time or both would constitute such representation or warranty expressly relates to an earlier date a Pool B Termination Event;
(in which event a) the principal amount of such representations Loan being advanced on such Borrowing Date is not less than $500,000, (b) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of (A) the Borrowing Limit and (yB) the Borrowing Base, (c) on and as of such Borrowing Date, after giving effect to such Borrowing, the aggregate Facility Amount hereunder, calculated solely with respect to Loans secured by Pool A Receivables, does not exceed the Pool A Borrowing Base, and (d) on and as of such Borrowing Date, after giving effect to such Borrowing, the aggregate Facility Amount hereunder, calculated solely with respect to Loans secured by Pool B Receivables, does not exceed the Pool B Borrowing Base;
(A) the Borrower has delivered to the Agent a copy of the Notice of Borrowing and the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (B) the Borrower has delivered or caused to have been delivered to the Custodian the Notice of Pledge and each item listed in the definition of Receivable File with respect to the Receivables being Pledged hereunder three (3) or, in the case of the initial Borrowing Date hereunder, four (4) Business Days prior to such Borrowing Date, (C) the Contract related to each Receivable being Pledged hereunder on such Borrowing Date has been duly assigned by Originator to TRS and duly assigned by TRS to the Borrower and duly assigned by the Borrower to the Agent and (D) by 2:30 P.M. (New York City time) on the Business Day immediately preceding such Borrowing Date, a Collateral Receipt from the Custodian confirming that, inter alia, the Receivable Files received on or before such Business Day conform with the Receivables Schedule delivered to the Custodian and the Agent pursuant to Section 2.02;
(vii) all terms and conditions of the Purchase and Contribution Agreement required to be satisfied in this Section 3.3 connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without regard limitation, the perfection of the Borrower’s interests therein (other than with respect to any determination Equipment which has a value of less than $25,000 and is leased under Dollar Purchase Option Contracts or agreement made or $50,000 and is leased under FMV Contracts), shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Agent, for the benefit of any Incremental Term Loan under Section 3.3(a)) the Lender, a first priority perfected security interest in such Receivables, Related Security and the Other Conveyed Property related thereto and the proceeds thereof shall have been satisfied made, taken or performed;
(A) the Servicer shall have taken or caused to be taken all steps necessary under all applicable law (including the filing of an Obligor Financing Statement) in order to cause a valid, subsisting and enforceable perfected, first priority security interest to exist in Originator’s favor in the Obligor Collateral securing each Receivable being Pledged hereunder on such Borrowing Date (other than with respect to Equipment which has a value of less than $25,000 and is leased under Dollar Purchase Option Contracts or $50,000 and is leased under FMV Contracts), (B) Originator shall have assigned such perfected, first priority security interest to TRS pursuant to any Originator Sale Agreement, (C) TRS shall have assigned the perfected, first priority security interest in the Obligor Collateral to the Borrower pursuant to the Purchase and Contribution Agreement and (iiD) a reaffirmation by each Credit Party the Borrower shall have assigned the perfected, first priority security interest in the Obligor Collateral (and the proceeds thereof) referred to in clause (A) above to the Agent, for the benefit of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured PartiesLender, pursuant to Section 2.15 hereof;
(ix) if the Obligor Collateral Documentsrelated to any Receivable (other than a Vehicle Sublimit Pledged Receivable) securing such Borrowing is a Vehicle, the Borrower shall have delivered to the applicable Registrar of Titles an application for a Certificate of Title for such Vehicle which such Certificate of Title shall indicate the Borrower as the owner of the related Vehicle and indicate “Bayerische Hypo- und Vereinsbank AG, New York Branch, as Agent” as the sole lienholder with respect to such Vehicle; and
(x) the Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of the Agent, for the benefit of the Lender, a valid, subsisting and enforceable first priority perfected security interest in the Borrower’s interest in the Obligor Collateral related to each Receivable being Pledged hereunder on such Borrowing Date (other than with respect to Underlying Equipment which has a value of less than $25,000 and is leased under Dollar Purchase Option Contracts or $50,000 and is leased under FMV Contracts);
(d) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Loans by the Lender in accordance with the provisions hereof; and
(e) The Lender shall have received and found to be satisfactory with respect to Pledged Receivables being Pledged in connection with such Borrowing, which have been previously pledged to any lender by Originator, TRS, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables.
(f) [Intentionally Omitted.]
(g) If Receivables related to Allegiant Partners Incorporated are being Pledged by the Borrower in connection with such Borrowing, National City Bank shall have executed and delivered to the Borrower and the Agent a release letter in the form attached hereto as Exhibit L and the Borrower shall have duly filed with the appropriate office in California a UCC-3 partial release evidencing the release contained in such release letter and otherwise in a form satisfactory to the Agent.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein(a) No Lender shall be required to make any Advance or Swing Line Loan (other than an Advance or Swing Line Loan that, after giving effect thereto and to the application of the proceeds thereof, does not increase the aggregate amount of the sum of outstanding (a) Advances and Swing Line Loans and (b) Reimbursement Obligations) and no Lender Issuer shall be obligated to fund issue any LoanFacility Letter of Credit, ifunless on the applicable Borrowing Date or Issuance Date :
(i) the Agent shall have received notice of Borrower's request for the Advance and/or the issuance of a Facility Letter of Credit with respect thereto as provided in Sections 2.08(a) and 2.17(c)(i), respectively, and such other approvals, opinions or documents as the Agent may reasonably request;
(ii) the representations and warranties of the Borrower contained in Article IV hereof are true and correct as of such Borrowing Date or Issuance Date; PROVIDED, HOWEVER, that for the purposes hereof, (A) from and after the date of delivery by the Borrower pursuant to Section 6.04(a) of their consolidated financial statements for the year ended November 30, 1997, the references in Section 4.03 to "Audited Financial Statements" shall be deemed to be references to the annual audited financial statements most recently delivered by the Borrower pursuant to Section 6.04(a) as of the date thereof:
of the request for an Advance and/or the issuance of a Facility Letter of Credit; and (aB) any representation or warranty from and after that date of delivery by any Credit Party contained herein or the Borrower pursuant to Section 6.04(b) of its consolidated financial statements for the quarter ending November 30, 1997, the references in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained thereinSection 4.03 to "Unaudited Financial Statements" shall be deemed to be references to the quarterly unaudited financial statements most recently delivered by the Borrower pursuant to Section 6.04(b) as of such date, except the date of that request for an Advance and/or the issuance of a Facility Letter of Credit;
(iii) All legal matters incident to the extent that making of such representation Advance shall be satisfactory to the Lenders and their counsel;
(iv) There exists no Event of Default or warranty expressly relates to an earlier date Unmatured Default; and
(in which event such representations and warranties were untrue or incorrect v) The making of the Advance and/or the issuance of the Facility Letter of Credit will not result in any material respect (without duplication Event of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation Default or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;Unmatured Default.
(b) Each Borrowing Notice with respect to Incremental Term Loans, each such Advance and each Swing Line Loan or the conditions set forth in Section 2.1(e)(ii)(A) Issuance Notice with respect to such Facility Letter of Credit shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions contained in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) 5.02 have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentssatisfied.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinThe obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, no Lender shall be obligated or a continuation of Eurocurrency Rate Loans) is subject to fund any Loan, if, as of the date thereoffollowing conditions precedent:
(a) any representation or warranty by any Credit The representations and warranties of the Borrower and each other Loan Party contained herein in each Loan Document, or in any other Loan Document is untrue document furnished at any time under or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such dateconnection herewith or therewith, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) with the same effect as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event though such representations and warranties were had been made on the date of the proposed Borrowing (it being understood and agreed that (x) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects (without duplication of any materiality qualifier contained therein) only as of such earlier date) specified date and (y) any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such date), and except that for purposes of this Section 4.02, the representations and warranties contained in Sections 5.06(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.12(b) and (c), respectively.
(b) No Default shall exist or would result from such proposed Borrowing or from the application of the proceeds thereof.
(c) The Administrative Agent and, if applicable, the Swing Line Lender shall have received a Request for Credit Extension in accordance with the requirements hereof. Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurocurrency Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in this Section 3.3 Sections 4.02(a), (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)b) and (c) have been satisfied on and (ii) a reaffirmation by each Credit Party as of the granting and continuance date of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsapplicable Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender Each Borrowing (including the initial Borrowing) shall be obligated subject to fund any Loan, if, as of the further conditions precedent that on the date thereofof such Borrowing the following statements shall be true and the Issuer (by accepting the proceeds of such Borrowing) shall be deemed to have certified that all such conditions precedent are satisfied on the date of each such Borrowing:
(a) any representation or warranty by any Credit Party the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Section 6.01 are correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations day as though made on and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), day and with respect shall be deemed to Incremental Term Loans, the Persons providing have been made (and to be correct in all material respects) on such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveday;
(b) with respect to Incremental Term Loansno Material Adverse Change in the condition of Issuer, any Affiliated Originator, CFS, any Affiliated Servicer or the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; orMaster Servicer has occurred and is continuing;
(c) no event has occurred and is continuing, or would result from such Borrowing that constitutes an Event of Termination or Unmatured Event of Termination;
(d) if such Borrowing is the first Borrowing of any calendar week, the Administrative Agent and each Funding Agent shall have received a pro-forma Coverage Condition Certificate, substantially in the form of Exhibit 5.02(d), executed by an authorized officer of Issuer, showing that after giving effect to each proposed Borrowing, the Coverage Condition is met;
(e) the Facility Termination Date shall not have occurred;
(f) the applicable Sub-Servicers, in each case as bailee for the Indenture Trustee for the benefit of the Secured Parties, shall have received a duly completed Notice of Borrowing in accordance the original Student Loan Notes that will be acquired or otherwise financed with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any such Borrowing (provided, however, that the applicable Sub-Servicers may receive the original Student Loan shall be deemed Notes not later than five days after the date of such Borrowing so long as prior to constitute, as such receipt the original Student Loan Notes are in the custody of the date thereof, Master Servicer or the Administrator as bailee pursuant to this Agreement);
(ig) a representation and warranty by all conditions precedent to Issuer’s acquisition of the Borrower that (x) except Student Loans to be acquired or otherwise funded with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as the proceeds of such date, except to Borrowing (other than the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication payment of any materiality qualifier contained thereinthe purchase price therefor) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) shall have been satisfied and no Purchase Termination Event shall have occurred with respect to the seller of such Student Loans;
(iih) a reaffirmation by each Credit Party the Administrative Agent shall have received acknowledgment of releases or termination statements on Form UCC-3 and any other documents necessary to evidence or release any security interest (other than that of the granting Indenture Trustee) in the Student Loans to be acquired or otherwise funded with the proceeds of such Borrowing, to the extent required for any such prior security interest to be terminated;
(i) the Issuer has paid all fees and continuance expenses due hereunder at such time; and
(j) with respect to any Private Loan, prior to any Borrowing with respect thereto and prior to its inclusion in the calculation of the Coverage Condition, (A) each such Private Loan shall be (1) covered by and serviced in accordance with the applicable Sub-Servicing Agreement in form and substance satisfactory to the Administrative Agent’s Liens, on behalf of itself the Funding Agents and the Secured PartiesRequired Lenders and (2) the Administrative Agent shall have received such other opinions, approvals, documents and certificates with respect to such Private Loan as the Administrative Agent, the Funding Agents and the Lenders shall reasonably request and (B) if such Private Loan has the benefit of a Private Loan Guaranty Agreement and the Private Loan Guarantor thereof is TXXX, the Administrative Agent and the Funding Agents have conducted such due diligence (including visiting the offices of TXXX) as the Administrative Agent and the Funding Agents shall deem necessary with respect to such Private Loan in their sole discretion;
(k) the amount on deposit in the Reserve Account after giving effect to such Borrowing shall be at least equal to the Reserve Account Minimum Balance;
(l) the Issuer shall have delivered to the Administrative Agent and each Funding Agent, if so requested by Administrative Agent or any such Funding Agent, a copy of each Purchase and Sale Agreement entered into after July 23, 2003, in each case duly executed by Issuer, and each other party thereto;
(m) Such powers of attorney as the Administrative Agent or any Lender shall reasonably request to enable the Administrative Agent to collect all amounts due under any and all Collateral;
(n) No suit, action or other proceeding, investigation or injunction, or final judgment relating thereto, shall be pending or threatened before any court or governmental agency, seeking to restrain or prohibit or to obtain damages or other relief in connection with any of the Transaction Documents or the consummation of the Transaction;
(o) No statute, rule, regulation or order shall have been enacted, entered or deemed applicable by any government or governmental or administrative agency or court that would make the transactions contemplated by any of the Transaction Documents illegal or otherwise prevent the consummation thereof; and
(p) the Issuer shall hold all FFELP Loans through the Eligible Lender Trustee and the Eligible Lender Trustee shall be an “eligible lender” under Section 435(d)(1)(D) of the Higher Education Act. Notwithstanding the foregoing, the conditions precedent described in clauses (a), (b), (d), (e), (f), (g), (h), (i), (j), (l), (m), and (n) above shall not apply to Borrowings made pursuant to the Collateral DocumentsSection 1.01(c) of this Agreement.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinbelow, no each Borrowing (including the initial Borrowing) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loansthe Agent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.12(b);
(b) with With respect to Incremental Term Loanssuch Borrowing, at least one Business Day prior to the date of such Borrowing, the conditions set forth Servicer shall have delivered to the Agent, in Section 2.1(e)(ii)(Aform and substance satisfactory to the Agent, a certificate signed by an officer of the Borrower having responsibility for financial matters of the Borrower which shall demonstrate that, after giving effect to such Borrowing requested by the Borrower, the Facility Amount will not exceed the lesser of the (i) shall not be or have been satisfied; orBorrowing Limit minus the Discount Amount and (ii) the Capital Limit;
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true, and the Borrower and acceptance by accepting the Borrower amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except to the extent or would result from such Borrowing, which constitutes an Early Amortization Event hereunder, or an event that such representation but for notice or warranty expressly relates to lapse of time or both would constitute an earlier date Early Amortization Event;
(in which event such representations iii) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateday, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of (x) the Borrowing Limit minus the Discount Amount and (y) the Capital Limit;
(A) the Borrower has delivered to the Agent a timely copy of the Notice of Borrowing and the Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by the Borrower, (B) (1) the Borrower has delivered or caused to have been delivered to the Custodian the Notice of Pledge (together with the attached Receivables Schedule) related to the Receivables being Pledged hereunder on such Borrowing Date and (i) the Pledged Developer Note Receivable File with respect to the Pledged Developer Note Receivables being Pledged hereunder on such Borrowing Date, (ii) the Pledged Consumer Note Receivable File with respect to each Pledged Consumer Note Receivable being Pledged hereunder on such Borrowing Date, (iii) the Pledged Purchased Consumer Note Receivable File with respect to each Pledged Purchased Consumer Note Receivable being Pledged hereunder on such Borrowing Date and (iv) the Eligible Developer Sale Agreement File with respect to each Eligible Developer Sale Agreement pursuant to which Pledged Purchased Consumer Note Receivables being Pledged hereunder on such Borrowing Date were sold to RFI or EFI, (2) the Pledged Developer Note Receivables, Pledged Consumer Note Receivables and/or Pledged Purchased Consumer Note Receivables being Pledged hereunder on such Borrowing Date are duly endorsed (except in the case of Existing Developer Note Receivables, Existing Pledged Consumer Note Receivables and/or Existing Pledged Consumer Note Receivables, in which case such items have bee endorsed to the extent required to be deemed Consumer Level Eligible Receivables or Primary Level Eligible Receivables hereunder) and duly assigned by RFI to the Borrower and duly endorsed and duly assigned by the Borrower to the Agent and (3) the Developer Mortgages, if applicable, and Interval Mortgages, if applicable, related to each Receivable being Pledged hereunder on such Borrowing Date, assignments thereof by the Applicable Underlying Borrower or Applicable Underlying Seller to RFI, assignments thereof by RFI to the Borrower and assignments thereof by the Borrower to the Agent have all been duly recorded in the appropriate recording offices, and (C) the Custodian has delivered to the Agent by 11:30 A.M. (New York City time) on such Borrowing Date, a Collateral Receipt from the Custodian confirming that, inter alia, the Receivable Files received on such Borrowing Date conform with the Receivables Schedule delivered to the Custodian and the Agent on such Borrowing Date;
(v) all terms and conditions of the applicable Borrower Receivables Purchase Agreement required to be satisfied in this Section 3.3 connection with the transfer and sale of each Receivable being Pledged hereunder on such Borrowing Date, including, without limitation, the perfection of the Borrower's interests therein shall have been satisfied in full, and all filings (including, without regard to any determination or agreement made or limitation, real property and UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Agent, for the benefit of any Incremental Term Loan under Section 3.3(a)) the Lender, a first priority perfected security interest in such Receivables and the proceeds thereof shall have been satisfied made, taken or performed; provided, that, no UCC financing statements will be required to be filed against any individual Consumer;
(vi) the Borrower shall have taken all steps necessary under all applicable law in order to cause a valid, subsisting and enforceable first priority security interest to exist in its favor in the Applicable Underlying Loan Collateral, the Applicable Underlying Purchased Note Collateral and all other Collateral related to each Receivable (and the proceeds thereof) being Pledged hereunder on such Borrowing Date and immediately prior to the Pledge of such Receivable by the Borrower to the Agent (for the benefit of the Lender), there shall have existed in favor of the Borrower as secured party, a valid, subsisting and enforceable first priority perfected lien in the Applicable Underlying Loan Collateral, the Applicable Underlying Purchased Note Collateral and all other such Collateral related to such Receivable (and the proceeds thereof), and such security interest is and shall be prior to all other liens (other than Permitted Liens and Encumbrances) upon and security interests in such the Applicable Underlying Loan Collateral, the Applicable Underlying Purchased Note Collateral and other such Collateral (and the proceeds thereof) that now exist or may hereafter arise or be created; provided, that, any such security interest in the Land, Units and/or Common Elements of an Applicable Development, to the extent evidenced by a Developer Mortgage, may be subordinate to an AD&C Mortgage;
(vii) the Borrower shall have taken all steps necessary under all applicable law in order to cause a valid, subsisting and enforceable first priority ownership interest to exist in its favor in the Pledged Purchased Consumer Note Receivable (and the proceeds thereof) related to any Receivable being Pledged hereunder on such Borrowing Date and immediately prior to the Pledge of such Receivable by the Borrower to the Agent (for the benefit of the Lender), there shall have existed in favor of the Borrower as secured party, a valid, subsisting and enforceable first priority ownership interest in the Pledged Purchased Consumer Note Receivable (and the proceeds thereof) related to any such Receivable which is and free of all liens and security interests; and
(viii) the Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of the Agent, for the benefit of the Lender, a valid, subsisting and enforceable first priority perfected lien in (A) the Borrower's perfected security interest in the Applicable Underlying Loan Collateral, the Applicable Underlying Purchased Note Collateral and all other Collateral (other than the Pledged Purchased Consumer Note Receivables) related to each Receivable (and the proceeds thereof) being Pledged hereunder on such Borrowing Date and (B) the Pledged Purchased Consumer Note Receivables, the Pledged Developer Note Receivables and any other Pledged Assets related to each Receivable (and the proceeds thereof) being Pledged hereunder on such Borrowing Date, and upon the Pledge of such Receivable by the Borrower to the Agent (for the benefit of the Lender), there shall exist in favor of the Agent (for the benefit of the Lender) as secured party, a valid, subsisting and enforceable first priority perfected security interest in (A) the Borrower's perfected security interest in the Applicable Underlying Loan Collateral, the Applicable Underlying Purchased Note Collateral and all other Collateral (other than the Pledged Purchased Consumer Note Receivables) related to each Receivable (and the proceeds thereof) being Pledged hereunder on such Borrowing Date and (B) the Pledged Purchased Consumer Note Receivables, the Pledged Developer Note Receivables and any other Pledged Assets related to each Receivable (and the proceeds thereof) being Pledged hereunder on such Borrowing Date, and such security interest is and shall be prior to all other liens upon and security interests therein that now exist or may hereafter arise or be created (other than Permitted Liens and Encumbrances);
(d) [Intentionally Omitted];
(e) All Interval Mortgages related to each Receivable being Pledged hereunder on such Borrowing Date and collateral assignments thereof from the Applicable Underlying Borrower or the Applicable Underlying Seller to RFI or EFI, as the case may be, from RFI or EFI, as the case may be, to the Borrower, and from the Borrower to the Agent, for the benefit of the Lender shall each have been duly recorded or registered in the Applicable Jurisdiction in accordance with all Applicable Laws. All Developer Mortgages related to each Receivable being Pledged hereunder on such Borrowing Date and collateral assignments thereof from RFI or EFI, as the case may be, to the Borrower, and from the Borrower to the Agent, for the benefit of the Lender shall each have been duly recorded or registered in the Applicable Jurisdiction in accordance with all Applicable Laws. All such Interval Mortgages, if applicable, and Developer Mortgages, if applicable, must have evidence thereon of payment of all required documentary stamps and intangible taxes, if any are required;
(f) The Borrower has delivered or caused to have been delivered to the Custodian the Notice of Pledge (together with the attached Receivables Schedule) related to the Receivables being Pledged hereunder on the related Borrowing Date and (i) the Pledged Developer Note Receivable Files with respect to each Pledged Developer Note Receivable being Pledged hereunder on such Borrowing Date, (ii) a reaffirmation by the Pledged Consumer Note Receivable File with respect to each Credit Party of Pledged Consumer Note Receivable being Pledged hereunder on such Borrowing Date, (iii) the granting Pledged Purchased Consumer Note Receivable File with respect to each Pledged Purchased Consumer Note Receivable being Pledged hereunder on such Borrowing Date and continuance of Agent’s Liens, on behalf of itself and (iv) the Secured Parties, Eligible Developer Sale Agreement File with respect to each Eligible Developer Sale Agreement pursuant to which Pledged Purchased Consumer Note Receivables are being Pledged hereunder on such Borrowing Date;
(g) [Intentionally Omitted];
(h) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the Collateral Documents.making of such Loans by the Lender in accordance with the provisions hereof;
(i) After giving effect to such Borrowing, the Sinking Fund Account shall be funded in the amount required under the Sinking Fund Account Agreement;
(j) As to each Applicable Underlying Loan or Applicable Underlying Purchase in respect of which the requested Loan is sought, the following statements shall be true:
(i) The Borrower has received no notice of any asserted or threatened defense, offset, counterclaim, discount, or allowance in respect of any Pledged Developer Note Receivables and all related Pledged Consumer Note Receivables and/or the Pledged Purchased Consumer Note Receivables being Pledged hereunder on such Borrowing Date; and
(ii) The Borrower has received such additional items as the Agent shall reasonably require, including, without limitation, an aging report and delinquency reports of any Pledged Developer Note Receivables and all related Pledged Consumer Note Receivables and/or the Pledged Purchased Consumer Note Receivables being Pledged hereunder on such Borrowing Date; and
(k) On the date of each Borrowing that is an Initial Underlying Loan Advance or Initial Underlying Purchase Advance, the following conditions shall have been satisfied:
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Equivest Finance Inc)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the initial Borrowing, except as otherwise expressly provided herein, no Lender explicitly set forth below) by Borrower from Lenders shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, in form and substance satisfactory to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term LoansAgent, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of Section 6.11(b) and the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan most recent Daily Remittance Report required by the proceeds terms of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.11(c);
(b) with respect to Incremental Term LoansOn the Borrowing Date of such Borrowing, the conditions set forth in Section 2.1(e)(ii)(A) following statements shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice true and correct, and Borrower by accepting any amount of such Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided warranties contained in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is 4.01 are true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(ii) no event has occurred and is continuing, except or would result from such Borrowing, which constitutes an Early Amortization Event or an Event of Default hereunder, or an event that but for notice or lapse of time or both would constitute an Early Amortization Event or an Event of Default;
(iii) (A) the principal amount of such Loan being advanced on such Borrowing Date is not less than $1,000,000, and (B) on and as of such Borrowing Date, after giving effect to such Borrowing, the Facility Amount does not exceed the lesser of the Borrowing Limit and the Borrowing Base;
(iv) (A) Borrower has delivered to Agent a copy of the Notice of Borrowing and Borrowing Base Certificate and, if applicable, the related Notice of Pledge (together with the attached Receivables Schedule) pursuant to Section 2.02, each appropriately completed and executed by Borrower, (B) by 5:00 P.M. (New York City time) two (2) Business Days prior to such Borrowing Date, Borrower has delivered or caused to have been delivered to Custodian the Notice of Pledge and each item listed in the definition of Receivable File with respect to the Receivables being Pledged hereunder, (C) the Contract related to each Receivable being Pledged hereunder on such Borrowing Date has been duly assigned by Seller to Borrower and duly assigned by Borrower to Agent, (D) by 1:00 P.M. (New York City time) on such Borrowing Date, a Collateral Receipt from Custodian shall have been delivered to Agent confirming that, inter alia, the related Receivable Files conform with the Receivables Schedule delivered to Custodian and Agent pursuant to Section 2.02 and (E) by 12:00 P.M. (New York City time) on such Borrowing Date, a Daily Remittance Report required by Section 6.11(c);
(v) if Borrower has purchased or otherwise received the Receivable from Seller, all terms and conditions of the Assignment required to be satisfied in connection with the assignment of each Receivable being Pledged hereunder on such Borrowing Date (and the Other Conveyed Property and Related Security related thereto), including, without limitation, the perfection of Borrower’s interests therein to the extent that such representation or warranty expressly relates to an earlier date required herein, shall have been satisfied in full, and all filings (in which event such representations and warranties were true and correct in all material respects (including, without duplication of any materiality qualifier contained thereinlimitation, UCC filings) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give Agent, for the benefit of any Incremental Term Loan under Section 3.3(a)Lenders, a first priority perfected security interest (subject only to Permitted Liens) in such Receivables, Related Security and the Other Conveyed Property related thereto and the proceeds thereof shall have been made, taken or performed;
(A) Borrower shall have taken or caused to be taken all steps necessary under all applicable law (including the filing of an Obligor Financing Statement) in order to cause a valid, subsisting and enforceable perfected, first priority security interest (subject only to Permitted Liens) to exist in Borrower’s favor in the Underlying Collateral securing each Receivable being Pledged hereunder on such Borrowing Date, (B) if Borrower has purchased the Receivable from Seller, Seller shall have assigned the perfected, first priority security interest (subject only to Permitted Liens) in the Underlying Collateral referred to in clause (A) above (and all proceeds thereof) to Borrower pursuant to the related Assignment and (C) Borrower shall have assigned the perfected, first priority security interest (subject only to Permitted Liens) in the Underlying Collateral (and the proceeds thereof) referred to in clause (A) above to Agent, for the benefit of Lenders, pursuant to Section 2.10 hereof;
(vii) Borrower shall have taken all steps necessary under all applicable law in order to cause to exist in favor of Agent, for the benefit of Lender, a valid, subsisting and enforceable first priority perfected security interest (subject only to Permitted Liens) in Borrower’s interest in the Underlying Collateral related to each Receivable being Pledged hereunder on such Borrowing Date; and
(viii) Borrower shall have delivered to Agent an Officer’s Certificate demonstrating pro-forma compliance with the Financial Covenants. Notwithstanding anything to the contrary set forth in this Agreement, any provision hereof that shall (or be deemed to) require that a mortgage, assignment of mortgage, UCC financing statement or other similar instrument (collectively “Documents to be Recorded”) shall have been duly recorded or filed shall be satisfied by evidence reasonably satisfactory to the Agent of the transmittal of such Documents to be Recorded to a title insurance company (or authorized title agent) for recordation or directly for recordation in accordance with applicable laws to the appropriate recording office; provided that promptly upon Borrower’s receipt of the recorded Documents to be Recorded in the appropriate recording office (and in any event within three (3) Business Days of such receipt and (a), with respect to a UCC financing statement, UCC-3 or similar instrument, no later than forty five (45) days after the related Receivable becomes a Pledged Asset hereunder and (b), with respect to a mortgage, assignment or mortgage or similar instrument, no later than (i) one hundred and eighty (180) days after the related Receivable becomes a Pledged Asset hereunder if the real estate comprising the Underlying Collateral is not located in the State of New York and (ii) two hundred and seventy (270) days after the related Receivable becomes a reaffirmation Pledged Asset hereunder if the real estate comprising the Underlying Collateral is located in the State of New York), Borrower shall forward to Agent the recorded Documents to be Recorded.
(c) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Loans by any Lender in accordance with the provisions hereof;
(d) Agent shall have confirmed in writing that any new Pledged Receivable would constitute an Eligible Receivable hereunder; and
(e) Agent shall have received on or before the date of such Borrowing each Credit Party of the granting other document, instruments or agreement requested by Agent, each in form and continuance of Agent’s Liens, on behalf of itself substance satisfactory to Agent and the Secured Parties, pursuant to the Collateral DocumentsLenders.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on the date of each Borrowing, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
(b) the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(d) the Agent Amortization Date has not occurred;
(e) each of the Borrower, the Servicer and the Custodian shall not have received timely made all of the deliveries required pursuant to the Custody Agreement with respect to the Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall be at least 700715;
(h) if such date occurs during a duly completed Notice of Borrowing Hedging Period, the Borrower shall be in accordance compliance with Section 2.5. The 5.03;
(i) upon the reasonable request by of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing;
(j) if any Timeshare Loans for which the applicable Timeshare Interest relates to the “Hilton Grand Vacations at the Crane” Resort are being transferred to the Borrower with the proceeds of such Borrowing, the Barbados Activation Date has occurred;
(k) if any Timeshare Loans for which the applicable Timeshare Interest relates to the “Hilton Grand Vacations Chicago Downtown / Magnificent Mile” Resort are being transferred to the Borrower with the proceeds of such Borrowing, the Chicago Activation Date has occurred; and
(l) at least five days prior to any Borrowing, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower. Each delivery of a Borrowing Request to the Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (j) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
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Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no Lender Each Borrowing (including the initial Borrowing) hereunder shall be obligated subject to fund any Loan, if, as of the further conditions precedent that on the date thereof:of such Borrowing the following statements shall be true (and Borrower by accepting the amount of such Borrowing shall be deemed to have certified that):
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect contained in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), SECTIONS 6.01 and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which 6.02 are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) the Agent shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower of the proceeds of any Loan shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations day as though made on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) day (and (y) the conditions in this Section 3.3 (without regard shall be deemed to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied made on such day),
(b) event has occurred and is continuing, or would result from such Borrowing, that constitutes an Event of Default, Servicer Event of Default or Unmatured Event of Default,
(c) giving effect to each proposed Borrowing, (i) no Borrowing Base Deficiency will exist and (ii) a reaffirmation by each the Letter of Credit Party Stated Amount is at least equal to the Letter of Credit Required Amount,
(d) Termination Date has not occurred,
(e) the granting and continuance of Agent’s LiensAdministrator shall have delivered, on behalf of itself the Borrower, an executed Borrowing Notice (certified by the Controller or Chief Financial Officer of the Administrator) to the Administrative Agent,
(f) the Servicer shall have delivered to the Administrative Agent and the Secured PartiesLiquidity Agent (I) a current list stating: (i) the identity of each Transportation Agent (with a contact person and telephone number) and each Armored Car Carrier, pursuant and (ii) the identity of each Processing Agent (with a contact person and telephone number) and (II) execution copies of all agreements relating to the ATMs or the transportation of Cash and proof of the required insurance relating to any new Transportation Agents, Armored Car Carriers or Processing Agents,
(g) the Servicer shall have delivered to the Administrative Agent and the Liquidity Agent copies of such executed written consents and waivers from third parties as the Collateral DocumentsAgent may reasonably request to ensure the Collateral Agent's or each Transportation Agent's unfettered access to the Cash;
(h) no law, rule or regulation shall prohibit and no order, judgment or decree of any Governmental Authority shall prohibit or enjoin the making of such Borrowing; and
(i) the Administrative Agent and Liquidity Agent shall have received such other approvals, opinions and documents as they may reasonably request.
Appears in 1 contract
Conditions Precedent to All Borrowings. Except Each Borrowing (including, except as otherwise expressly provided hereinset forth below, no the initial Borrowing) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereofconditions precedent that:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loanssuch Borrowing (other than the initial Borrowing), on or prior to the date of such Borrowing, the Persons providing such Incremental Term Loan Servicer shall have determined not delivered to make such Incremental Term Loan as a result the Administrator (i) the most recent Monthly Remittance Report and Compliance Certificate required by the terms of Section 6.08(a) and (ii) the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan most recent Borrowing Base Certificate required by the proceeds terms of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.08(b);
(b) with respect by no later than 12:00 noon (Springfield, Missouri time) two (2) Business Days prior to Incremental Term Loansthe requested Borrowing Date, the conditions Administrator shall have received (A) the Notice of Borrowing (together with the attached Interim Receivables Schedule) delivered to the Administrator pursuant to Section 2.02, appropriately completed and executed by the Borrower, and (B) a Borrowing Base Certificate for such Borrowing, together with, if the calculation of the Borrowing Base set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; orsuch Daily Borrowing Base Certificate includes any amount of Collections on deposit in the Collection Account, a statement of funds in the Collection Account on the date of such Borrowing;
(c) by no later than four (4) Business Days prior to the Agent requested Borrowing Date, the Custodian shall not have received the Receivable File for each Eligible Receivable to be funded on the related Borrowing Date and shall have delivered a duly completed Notice of Collateral Receipt to the Administrator pursuant to Section 6.15 confirming, among other things, that the Receivable Files received on such Borrowing in accordance Date conform with Section 2.5. The request by the Interim Receivables Schedule delivered to the Custodian and the Administrator;
(d) the Borrower shall have delivered to the Administrator the Assignment delivered to it on such Borrowing Date pursuant to the PCA;
(e) the representations and acceptance by warranties of Freedom Financial, the Servicer and the Borrower of the proceeds of any Loan contained in Section 4.01 shall be deemed to constitute, as of the date thereof, (i) a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if and as applicable as provided in Section 3.3(a) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication respects, before and after giving effect to the Borrowing to take place on such Borrowing Date and to the application of any materiality qualifier contained therein) proceeds therefrom, on and as of such day as though made on and as of such date;
(f) no Funding Termination Event, except to the extent that such representation Event of Default or warranty expressly relates to an earlier date Default shall have occurred or be continuing;
(in which event such representations g) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateBorrowing Date, after giving effect to such Borrowing, the aggregate principal amount of the Outstanding Advances shall not exceed the lesser of (x) the Maximum Facility Amount and (y) the Borrowing Base;
(h) on and as of such Borrowing Date, after giving effect to such Borrowing, Freedom Financial shall be in compliance with the financial covenants set forth in subclauses (ii), (iii) and (iv) of Section 5.08(b);
(i) all terms and conditions of the PCA required to be satisfied in this Section 3.3 connection with the transfer and sale of each Receivable being Pledged hereunder (and the Other Conveyed Property related thereto), including, without regard to any determination or agreement made or limitation, the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Administrator, for the benefit of the Lender, a first priority perfected security interest in such Receivables and the Other Conveyed Property (other than with respect to any Incremental Term Loan under interest in Financed Vehicles included in such Other Conveyed Property, the re-issuance of the related Lien Certificates to show the Borrower or the Administrator as secured party) related thereto and the proceeds thereof shall have been made, taken or performed;
(j) each condition precedent specified in this Section 3.3(a)3.02 (and, on the initial Borrowing Date, Section 3.01) to such Borrowing shall have been satisfied prior to such Borrowing;
(k) no law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or governmental body, agency or instrumentality shall prohibit or enjoin, the making of such Advances by the Lender in accordance with the provisions hereof;
(iil) a reaffirmation by each Credit Party the Administrator shall have confirmed that the Interim Receivables Schedule delivered to the Administrator pursuant to Section 2.02 is accurate and correct and clear of any validation error;
(m) the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, Administrator shall have received all reports due pursuant to the Collateral DocumentsRequired Audits and all Officer’s Certificates and financial statements required to be delivered to the Administrator pursuant to Section 6.20 hereof;
(n) Freedom Financial shall have taken all steps necessary under all applicable law (including, without limitation, obtaining valid lien releases from other secured lenders) in order to cause to exist in favor of Freedom Financial a valid, subsisting and enforceable first priority perfected security interest in the Financed Vehicle securing each Receivable (and the proceeds of such Financed Vehicle) being Pledged hereunder and immediately prior to the sale and/or contribution of such Receivable by Freedom Financial to the Borrower pursuant to the PCA, there shall have existed in favor of Freedom Financial as secured party, a valid, subsisting and enforceable first priority perfected security interest in the Financed Vehicle securing such Receivable and the proceeds thereof (except, as to priority, for any tax liens or mechanic’s liens that may arise after the applicable date of purchase of such Receivable under the PCA), which security interest has been assigned (x) by Freedom Financial to the Borrower pursuant to the PCA and (y) by the Borrower to the Administrator (for the benefit of the Lender) pursuant to this Agreement;
(o) None of the Borrower, the Servicer or any of their respective Affiliates shall have suffered any material adverse change to its property, business, condition (financial or otherwise), prospects or operations or there shall have occurred any other event which could reasonably be expected to have a Material Adverse Effect on the enforceability, marketability or collectability of the Pledged Receivables or the Borrower’s or the Servicer’s ability to conduct its business or perform its obligations under this Agreement or any other Transaction Document, in each case as determined by the Administrator or the Lender in its sole discretion;
(p) there shall not exist any action, suit, investigation, litigation or proceeding or other legal or regulatory developments, pending or threatened in any court or before any arbitrator or Government Entity that, in the reasonable opinion of Administrator, singly or in the aggregate, materially impairs the transactions contemplated by the Transaction Documents or that could have a Material Adverse Effect;
(q) the Administrator shall have received executed lien releases, in form and substance satisfactory to the Administrator in its sole discretion, necessary to release all security interests and other rights of any Person in the Pledged Receivables, Related Security and other Pledged Assets previously granted by Freedom Financial or the Borrower; and
(r) For each Borrowing other than the initial Borrowing, the Administrator shall have received on or before the date of such Borrowing, the Warrants, duly executed by Freedom Financial in favor of the Lender or its designee.
Appears in 1 contract
Samples: Revolving Loan and Security Agreement (Freedom Financial Group Inc)
Conditions Precedent to All Borrowings. Except Each Borrowing (including the Initial Borrowing) made by the Lenders to the Borrower (except as otherwise expressly provided hereinset forth in Section 2.02(e)(iv)), no Lender shall be obligated subject to fund any Loanthe further conditions precedent that on the date of each Borrowing, if, as each of the date thereoffollowing shall be true and correct both before and immediately after giving effect to such Borrowing:
(a) any representation or warranty by any Credit Party the Administrative Agent shall have received from the Servicer the Monthly Report most recently required to be delivered pursuant to the Servicing Agreement;
(b) the representations and warranties contained herein or in any other Loan Document is untrue or incorrect Article IV shall be true and correct in any all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such date, except to the extent that date as though made on and as of such representation or warranty expressly relates to an earlier date (in which event unless such representations and warranties were untrue or incorrect by their terms refer to an earlier date, in any which case they shall be true and correct in all material respect (without duplication of any materiality qualifier contained therein) respects on and as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effective;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) shall not be or have been satisfied; or
(c) no event has occurred and is continuing, or would result from such Borrowing which constitutes a Default, an Event of Default, a Servicer Termination Event or an Unmatured Servicer Termination Event;
(d) the Agent Amortization Date has not occurred;
(e) each of the Borrower, the Servicer and the Custodian shall not have received timely made all of the deliveries required pursuant to the Custody Agreement with respect to the Pledged Timeshare Loans and any Timeshare Loans to become Pledged Timeshare Loans in connection with such Borrowing;
(f) no Borrowing Base Deficiency shall exist before such Borrowing and, after giving pro forma effect to such Borrowing, any concurrent Transfer of Timeshare Loans to the Borrower with the proceeds of such Borrowing and/or any concurrent release of Pledged Timeshare Loans on such date pursuant to Section 2.15, no Borrowing Base Deficiency shall exist;
(g) if any Timeshare Loans are being Transferred to the Borrower with the proceeds of such Borrowing, after giving effect to such Transfer, the weighted average FICO® score of all Obligors of Eligible Timeshare Loans on the Applicable Measurement Date with FICO® scores (weighted based on the Timeshare Loan Balances on such date) shall be at least 700;
(h) if such date occurs during a duly completed Notice of Borrowing Hedging Period, the Borrower shall be in accordance compliance with Section 2.5. The 5.03;
(i) upon the reasonable request by of any Lender, the Borrower shall have provided to such Lender the documentation and other information so requested in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case at least five days prior to any Borrowing;
(j) if any Timeshare Loans for which the applicable Timeshare Interest relates to the “Hilton Grand Vacations at the Crane” Resort are being transferred to the Borrower with the proceeds of such Borrowing, the Barbados Activation Date has occurred;
(k) if any Timeshare Loans for which the applicable Timeshare Interest relates to the “Hilton Grand Vacations Chicago Downtown / Magnificent Mile” Resort are being transferred to the Borrower with the proceeds of such Borrowing, the Chicago Activation Date has occurred; and
(l) at least five days prior to any Borrowing, any Borrower that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered a Beneficial Ownership Certification in relation to such Borrower. Each delivery of a Borrowing Request to the Administrative Agent, and the acceptance by the Borrower of the proceeds of any Loan Borrowing, shall be deemed to constitute, as of the date thereof, (i) constitute a representation and warranty by the Borrower that (x) except with respect to Incremental Term Loans if that, as of the date of such Borrowing, both before and as applicable as provided in Section 3.3(a) aboveafter giving effect thereto and the application of the proceeds thereof, each representation and warranty by any Credit Party contained herein or of the applicable statements set forth in any other Loan Document is clauses (a) through (j) above are true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that set forth in such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier date) and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsclauses.
Appears in 1 contract
Samples: Receivables Loan Agreement and Sale and Contribution Agreement (Hilton Grand Vacations Inc.)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided hereinbelow, no each Borrowing (including the initial Borrowing) by the Borrower from the Lender shall be obligated subject to fund any Loan, if, as of the date thereoffurther conditions precedent that:
(a) With respect to any representation such Borrowing (other than the initial Borrowing), on or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as prior to the date of such dateBorrowing, except the Servicer shall have delivered to the extent that such representation or warranty expressly relates Agent, with a copy to an earlier date (the Facility Insurer, in which event such representations form and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), substance satisfactory to the Agent and with respect to Incremental Term Loansthe Facility Insurer, the Persons providing such Incremental Term Loan have determined not to make such Incremental Term Loan as a result most recent Monthly Remittance Report required by the terms of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveSection 6.11(b);
(b) with respect At least four Business Days prior to Incremental Term Loansthe date of such Borrowing, the conditions set forth Servicer shall have delivered to the Agent, the Facility Insurer and the Backup Servicer a Borrowing Report, in Section 2.1(e)(ii)(A) form and substance satisfactory to the Agent and the Facility Insurer, signed by an officer of the Borrower having responsibility for financial matters of the Borrower which shall not be or demonstrate that, after giving effect to such Borrowing requested by the Borrower no Program Deficiency shall exist and such Borrowing Report shall have been satisfied; orverified by the Backup Servicer pursuant to Section 6.14(g);
(c) On the Agent Borrowing Date of such Borrowing, the following statements shall not have received a duly completed Notice of Borrowing in accordance with Section 2.5. The request by be true, and the Borrower and acceptance by accepting the Borrower amount of the proceeds of any Loan such Borrowing shall be deemed to constitute, as of the date thereof, have certified that:
(i) a representation the representations and warranty by warranties contained in Section 4.01 are true and correct, before and after giving effect to the Borrower that (x) except with respect Borrowing to Incremental Term Loans if take place on such Borrowing Date and to the application of proceeds therefrom, on and as applicable of such day as provided in Section 3.3(a) above, each representation though made on and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such date;
(ii) no event has occurred and is continuing, except to or would result from such Borrowing, which constitutes an Early Amortization Event hereunder, or an event that but for notice or lapse of time or both would constitute an Early Amortization Event;
(a) the extent that principal amount of such representation or warranty expressly relates to an earlier date Loan being advanced on such Borrowing Date is not less than $1,000,000 and (in which event such representations b) on and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of such earlier dateday, after giving effect to such Borrowing no Program Deficiency shall exist;
(A) the Borrower has delivered to the Agent and the Facility Insurer a timely copy of a Notice of Borrowing pursuant to Section 2.02(b), appropriately completed and executed by the Borrower, (B) the Facility Insurer has not delivered to the Agent and the Lender a timely copy of a Borrowing Objection Notice pursuant to Section 2.02(c), and (yC) the Contract related to each Pledged Receivable hereunder on such Borrowing Date has been duly assigned by Maxtor to the Borrower and duly assigned by the Borrower to the Collateral Agent, for the benefit of the Secured Parties;
(v) all terms and conditions of the Purchase Agreement required to be satisfied in this Section 3.3 connection with the transfer and sale of each Receivable (and the Other Conveyed Property related thereto) being Pledged hereunder on such Borrowing Date, including, without regard to any determination or agreement made or limitation, the perfection of the Borrower's interests therein shall have been satisfied in full, and all filings (including, without limitation, UCC filings) required to be made by Agent any Person and all actions required to be taken or providers performed by any Person in any jurisdiction to give the Collateral Agent, for the benefit of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant a first priority perfected security interest in the Pledged Assets and the proceeds thereof (subject only to Other Permitted Liens) shall have been made, taken or performed; and
(vi) the Facility Insurance Policy shall be in full force and effect;
(d) No law or regulation shall prohibit, and no order, judgment or decree of any federal, state or local court or Government Entity shall prohibit or enjoin, the making of such Loans by the Lender in accordance with the provisions hereof;
(e) The Agent and the Facility Insurer shall have received and found to be satisfactory with respect to the Pledged Receivables being Pledged in connection with such Borrowing, which have been previously pledged, assigned or otherwise transferred to any Person by Maxtor, the Borrower or any Affiliate thereof under any other financing facility, evidence of the release of any liens granted in connection with such financing with respect to any such Pledged Receivables; and
(f) The Agent, the Collateral DocumentsAgent and the Facility Insurer shall have received such other opinions, documents and instruments, as such Person shall have reasonably requested to be delivered by the Servicer or the Borrower.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Maxtor Corp)
Conditions Precedent to All Borrowings. Except as otherwise expressly provided herein, no The obligation of each Lender to make any Loans (other than Revolving Loans made for the purpose of repaying Swingline Loans pursuant to Section 2.1(b)(ii)) shall be obligated subject to fund any Loan, if, as the prior or concurrent satisfaction (in form and substance reasonably satisfactory to the Administrative Agent) of each of the date thereofconditions precedent set forth below:
(a) any representation or warranty by any Credit Party contained herein or in any other Loan Document is untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such date, except to the extent that such representation or warranty expressly relates to an earlier date (in which event such representations and warranties were untrue or incorrect in any material respect (without duplication of any materiality qualifier contained therein) as of such earlier date), and with respect to Incremental Term Loans, the Persons providing such Incremental Term Loan The Closing Date shall have determined not to make such Incremental Term Loan as a result of the fact that such representation or warranty is untrue or incorrect unless, with respect to an Incremental Term Loan the proceeds of which are used to finance substantially contemporaneously a Limited Condition Acquisition, such representations and warranties were true and correct at the time the Limited Condition Acquisition Agreement was executed and effectiveoccurred;
(b) with respect to Incremental Term Loans, the conditions set forth in Section 2.1(e)(ii)(A) The applicable Borrower shall not be or have been satisfied; or
(c) the Agent shall not have received delivered a duly completed Notice of Borrowing in accordance with Section 2.5. The request by the Borrower and acceptance by the Borrower 2.2(b);
(c) Each of the proceeds representations and warranties of any Loan shall be deemed the Credit Parties set forth in this Agreement and in the other Credit Documents qualified as to constitutemateriality are true and correct and those not so qualified are true and correct in all material respects, in each case only as of the date thereofof any Borrowing, (i) a representation and warranty by with the Borrower that (x) except with respect to Incremental Term Loans same effect as if made on and as applicable of such date, both immediately before and after the making of the Loans (except to the extent any such representation or warranty is expressly stated to have been made as provided of a specific date, in Section 3.3(awhich case such representation or warranty is true and correct (if qualified as to materiality) above, each representation and warranty by any Credit Party contained herein or in any other Loan Document is true and correct in all material respects (without duplication of any materiality qualifier contained therein) if not so qualified), in each case only on and as of such specific date), provided that the representation and warranty set forth in Section 4.12 shall only be made on the Closing Date;
(d) With respect to the making of any Loan, the limitation on amounts set forth under Section 2.1 will not be exceeded immediately after giving effect thereto;
(e) No Default or Event of Default shall have occurred and be continuing on such date, except both immediately before and after giving effect to such Borrowing; and
(f) So long as any Lender is a Defaulting Lender, the extent Swingline Lender shall not be required to fund any Swingline Loans unless it is satisfied that it will have no Fronting Exposure after giving effect to such Swingline Loan. Each giving of a Notice of Borrowing and the consummation of each Borrowing, shall be deemed to constitute a representation or and warranty expressly relates to an earlier date (by the applicable Borrower that the statements contained in which event such representations and warranties were true and correct in all material respects (without duplication of any materiality qualifier contained thereinSection 3.2(c) through Section 3.2(e) above are true, both as of the date of such earlier date) notice or request and (y) the conditions in this Section 3.3 (without regard to any determination or agreement made or to be made by Agent or providers of any Incremental Term Loan under Section 3.3(a)) have been satisfied and (ii) a reaffirmation by each Credit Party as of the granting and continuance of Agent’s Liens, on behalf of itself and the Secured Parties, pursuant to the Collateral Documentsdate such Loan is made.
Appears in 1 contract
Samples: Credit Agreement (Allied World Assurance Co Holdings, AG)
