Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Section 7.1:
(a) Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the Competitive Bid LC fronting fees as provided for in SECTION 4.3 Section 5.4(b) hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenderstrue and correct in all material respects as of such earlier date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such Borrowings Borrowing and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that and Lenders that, as of the Borrowing Date or the date of issuance of the requested LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writingwriting with respect to such subsequent funding or issuance; and.
(b) So long as any Loan Party is a "subsidiary of a registered holding company" and not a "holding company", a "public-utility company", an "investment company", or a "fiscal or financing agency" of a "holding company", "public utility company" or an "investment company" as such terms are used in or defined by PUHCA, the proceeds of the Borrowing will be used in accordance with Section 8.12(a)(ii) below;
(c) Section 8.12, Government Regulations, of the Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, 5.1 and SECTION 5.2, Facility B A Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing Borrowing, a Notice of LC (together with the applicable LC Agreement), or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received received, as applicable, the LC fees provided for in SECTION 4.3 and 4.4 hereof or the Competitive Bid fees as provided for in SECTION 4.3 4.5 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B A Agreement is material to the transactions contemplated in this Facility B A Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) occasion of any Borrowing (including any Competitive the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in ARTICLE VII are correct on and as of the date of such Borrowing, upon giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), unless (A) no Floor Plan Event of Default exists with respect to the Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (and the acceptance of the proceeds of such Borrowing) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofto such Borrowing, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which if such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which Borrowing is a Material Adverse Event Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall have occurrednot exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no Default or Potential Default shall have occurred and be continuing; party (f) other than the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits theretothe Floor Plan Agent or a Lender) to any Intercreditor Agreement executed by any Consolidated Company in connection with such any Permitted AcquisitionNew Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, accompanied by all financial information, projectionscontest or breach involves $1,000,000 or more in collateral, and certifications required by such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related Agent or the Floor Plan Agent to such Borrowing must be satisfactory to Determining Lenders other party and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCompany.
Appears in 1 contract
Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (c) and SECTION 5.2, Facility B Lenders will (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Delayed Drawdown Collateral Loans or Revolving Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Unfunded Reserve Account to the extent required under Section 8.04:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Lenders and the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.02;
(b) immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test and Collateral Quality Test shall be satisfied (as provided for in SECTION 4.3 hereof, if applicable; demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing and certified by a Responsible Officer of the Borrower (or the Collateral Manager on behalf of the Borrower));
(c) all each of the representations and warranties of any Consolidated Company set forth the Borrower contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); ;
(d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Event of Default shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(fe) the funding of such Borrowings is permitted by Law; (g) in Borrower and the event all or any part Collateral Manager shall have received written notice from the Administrative Agent, evidencing the approval of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS Administrative Agent in its sole discretion, in accordance with clause (b) or (cA) of the definition of Permitted Acquisition“Eligible Loan”, Administrative Agent shall have timely received certified copies of the loans to be added to the Collateral (if any and all purchase agreements (together with, upon loans are to be added to the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company Collateral in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2Advance); and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and and
(f) above are true after the making of such Advances and correct in all respects. Each condition precedent in this Facility B Agreement the deposit of any portion thereof into the Unfunded Reserve Account, the amount on deposit thereon is material at least equal to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingUnfunded Reserve Required Amount.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Section 7.1 and Section 7.2 (as applicable), SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and no Issuing Lender will be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be:
(a) Administrative Agent or Issuing Lender (as applicable) shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 Section 5.4 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company (or, in addition, with respect to any Borrowing by any Unrestricted Borrower, such Unrestricted Borrower) set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent and Issuing Lenders (as applicable) shall constitute the representation and warranty by Borrower Borrowers to Administrative Funding Agent that and Issuing Lenders that, as of the Borrowing Date or the date of issuance of the LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Issuing Lenders may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, precedent that the Effective Date shall have occurred and SECTION 5.2, Facility B Lenders will not on the date of such Borrowing:
(a) The following statements shall be obligated to fund true (as opposed to continue or convert) and each of the giving of the applicable Notice of Borrowing and the acceptance by any Borrower of the proceeds of such Borrowing (including any Competitive Borrowing), unless shall constitute a representation and warranty by such Borrower that on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 (except the representation set forth in the last sentence of subsection (e) thereof) and, in the case of any Borrowing made to a specific date or Designated Subsidiary, in the Designation Agreement for such Designated Subsidiary, are correct on and as of such date, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the facts on which such representations application of the proceeds therefrom, that constitutes a Default,
(iii) all governmental and warranties are based third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been changed obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, all applicable waiting periods in connection with the Acquisition shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the reasonable judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated or permitted by hereby, and
(iv) all conditions precedent to the Loan Papers andconsummation of the Acquisition (other than the payment of cash consideration from, if applicableamong other sources, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the initial Borrowing will be used hereunder) shall have been satisfied substantially in accordance with the terms of the Stock and Asset Purchase Agreement dated as of October 1, 2004 between UCB SA and the Company, as amended through February 8, 2005, without any waiver or amendment not consented to finance a Permitted Acquisition contemplated by ITEMS the Required Lenders of any material term, provision or condition set forth therein, and in compliance with all applicable laws.
(b) or The Company's Public Debt Rating shall be not lower than BBB- from S&P and not lower than Baa3 from Moody's.
(c) The Agenx xxxxx have received on or before the date of such Borrowing, in form and substance satisfactory to the Agent and in sufficient copies for each Lender, copies of the definition audited financial statements of Permitted Acquisitionthe Surface Specialties business of UCB SA as at December 31, Administrative 2003 prepared in accordance with generally accepted accounting principles in Belgium; and
(d) The Agent shall have timely received certified copies of such other approvals, opinions or documents as any and all purchase agreements (together with, upon Lender through the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.35.1 (except SECTION 5.1(B)), SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing or Swing Line Borrowing), as the case may be, unless on the date of such Borrowing (and after giving effect thereto): ), as the case may be:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
(b) Administrative Agent shall have received received, as applicable, the Competitive Bid fees provided for in SECTION 4.3 hereof or any fees then payable as provided for in SECTION 4.3 hereof4.2, if applicable; ;
(c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); ;
(d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; ;
(fe) the funding of such Borrowings Borrowing is permitted by Law; and
(g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (if) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), C) and (fD) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, funding unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: 364 Day Revolving Credit and Term Loan Agreement (Mci Worldcom Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (d) and SECTION 5.2, Facility B Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Revolving Reserve Account to the extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent shall must have timely received therefor a Notice and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of Borrowing the Advance and such approval has not expired or Notice been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of Competitive Borrowing as the case may be; Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees as provided for Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in SECTION 4.3 hereof, if applicable; accordance with Section 2.03;
(c) all immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(d) each of the representations and warranties of any Consolidated Company set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; ;
(e) no Default Default, Event of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(f) the funding of such Borrowings is permitted by LawReinvestment Period shall not have terminated; and
(g) in after giving effect to such Advance, the event all or any part aggregate outstanding principal balance of the proceeds Advances shall not exceed the lesser of (x) the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS Maximum Facility Amount and (by) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and sum of:
(i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determinationthe Aggregate Net Collateral Balance, and upon minus
(ii) the reasonable request of Administrative AgentMinimum Equity Amount, Borrower shall deliver to Administrative Agent evidence substantiating any of plus
(iii) the matters aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingPrincipal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make a Loan to Borrower (including, without limitation, the initial Loan) shall be subject to the further conditions stated precedent that (a) on or prior to the date of such Loan, the Agent shall have received from Borrower a Notice of Borrowing, Notice of Swing Loan or a Competitive Bid Confirmation, as the case may be, in SECTION 2.3, SECTION 5.1, accordance with the terms of this Agreement and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convertb) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing Loan, the following statements shall be true and correct (and after each of the giving effect thereto): (a) Administrative Agent shall have timely received therefor a of any applicable Notice of Borrowing or Borrowing, Notice of Swing Loan or Competitive Borrowing Bid Confirmation, as the case may be; (b) Administrative Agent shall have received , and the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all acceptance by Borrower of the proceeds of such Loan, shall constitute a representation and warranty by Borrower that on the date of such Loan such statements are true and correct):
(i) The representations and warranties of any Consolidated Company set forth Borrower contained in the Loan Papers Section 7.01 of this Agreement are true and correct in all material respects on and as of the date of such Loan (except to the extent that for (i1) the those representations and or warranties speak or parts thereof that, by their terms, expressly relate solely to a specific date or (ii) the facts on date, in which case such representations and warranties are based have shall be true and correct in all material respects as of such specific date; and (2) if such Loan is not a part of the initial Borrowing hereunder and if at the time of such Loan (I) all senior unsecured long-term debt of the Borrower is rated BBB or higher by S&P or is rated Baa2 or higher by Moody's, (II) the Borrower is not Unrated and (III) either (x) all senior unsecured long-term debt of the Borrower is rated BBB+ or higher by S&P and is rated Baal or higher by Moody's or (y) the Borrower is not on credit watxx xxxx negative implications with S&P or Moody's (and no similar comment has been changed made by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition X&X xx Moody's regarding a potential downgrade of any Consolidated Company which is a Material Adverse Event ox xxx Xorrower's debt ratings), the representation and warranty set forth in clause (i) of Section 7.01(j)), before and after giving effect to such Loan and to any other Loans to be made on such date, and to the application of the proceeds from such Loan and such other Loans, as though made on and as of such date;
(ii) Borrower shall be in compliance with and shall have occurredperformed all agreements and covenants made by it under this Agreement; and
(eiii) no No Default or Potential Event of Default shall have occurred and be continuing; (f) the funding of continuing or would result from such Borrowings is permitted by Law; (g) in the event all Loan or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the other Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each made on such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingdate.
Appears in 1 contract
Samples: Revolving Credit Agreement (Reliant Energy Resources Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lenders to make any Loan on the occasion of any Borrowing on or after the Effective Date is subject to the further conditions stated in SECTION 2.3precedent that, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): Loan is made:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the The representations and warranties of any Consolidated Company each Obligor set forth in this Agreement and in the other Loan Papers are Documents shall be true and correct in all material respects (except to the extent that (iqualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) on and as of the representations and warranties speak date of such Borrowing, except to a specific date or (ii) the facts on which extent any such representations and warranties are based have been changed expressly limited to an earlier date, in which case, on and as of the date of such Borrowing, such representations and warranties shall continue to be true and correct in all material respects (except to the extent qualified by transactions contemplated materiality or permitted by the Loan Papers reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) as of such specified earlier date.
(b) The Administrative Agent and, if applicable, supplemental Schedules the applicable Swingline Lender, shall have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); received (di) no change in the financial condition case of any Consolidated Company which is a Material Adverse Event shall have occurred; Borrowing of Revolving Credit Loans, a Borrowing Request by the time and on the Business Day specified in Section 2.02 and (eii) no in the case of a Swingline Borrowing, a Swingline Borrowing Request as required by Section 2.03(b) by the time and on the Business Day specified in Section 2.03(b).
(c) No Default or Potential Event of Default shall have occurred and be continuing; (f) continuing or would result from the funding making of such Borrowings is permitted by Law; Loan.
(gd) in With respect to any Borrowing after the event all or any part of Effective Date, the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies a certification of any a Principal Financial Officer of WIL-Ireland (which may be contained in the applicable Borrowing Request or Swingline Borrowing Request) certifying that immediately after giving pro forma effect to such Borrowing, (1) WIL-Ireland and all purchase agreements its Subsidiaries, taken as a whole, will be Solvent, (together with2) WIL-Bermuda and its Subsidiaries, upon the request of Administrative Agenttaken as a whole, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; will be Solvent and (i3) all matters related no Obligor or Material Subsidiary intends, as of such date, to (x) voluntarily commence a case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law, (y) make a general assignment for the benefit of creditors, or (z) apply for or consent to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, examiner, administrator, sequestrator or similar official of such Borrowing must be satisfactory to Determining Lenders Obligor or Material Subsidiary or a substantial part of its assets, in each case of clauses (x), (y) and their respective counsel in their reasonable determination, and upon (z) within the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any next 10 Business Days. The acceptance of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice benefits of each Borrowing delivered to Administrative Agent shall constitute the a representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is each of the essence in respect of Obligors to each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement Lenders that each such condition precedent be all of the conditions specified in Section 5.02(a) and 5.02(c) have been satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingof that time.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Weatherford International PLC)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender Group (or any member thereof) to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any occasion of each Borrowing (including the initial Borrowing) or of the Agent to cause the Issuing Bank to issue any Competitive Borrowing), unless requested L/C shall be subject to the further conditions precedent that on the date of such Borrowing (and after giving effect thereto): Borrowing, or Letter of Credit Request:
(a) Administrative Agent the following statements shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as be true and the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofnotice required by Section 2.2(a), if applicable; which notice shall be deemed to -------------- be a certification by the Borrower that:
(ci) all of the The representations and warranties contained in Section 5.1 ----------- are correct on and as of the date of such Borrowing or the issuance of such requested L/C as though made on and as of such date;
(ii) No event has occurred and is continuing, or would result from such Borrowing, or the issuance of the requested L/C, which constitutes an Event of Default or Potential Event of Default;
(iii) Nothing shall have occurred and the Agent shall not have become aware of any Consolidated Company set forth in fact or condition not previously known, which the Loan Papers are true and correct in all Agent shall determine has, or could reasonably be expected to have, a material respects (except adverse effect on the rights or remedies of the Lender Group, or on the ability of the Borrower to perform its obligations to the extent that Lender Group or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, property, assets, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; and
(iv) The security interests and liens in favor of the Lender Group are valid, enforceable, and prior to all others' rights and interests, except those the Agent consents to in writing; and
(v) All Loan Documents are in full force and effect; and
(b) the Agent shall have received such other approvals, opinions or documents as the Agent may reasonably request. The foregoing conditions precedent are not conditions to each Lender (i) the representations and warranties speak to a specific date participating in or reimbursing Agent for such Lender's Pro Rata Share of any drawings under L/Cs or Revolving Loans made by Agent, in each case, as provided herein, or (ii) the facts on which participating in or reimbursing Swing Line Lender for such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition Lender's Pro Rata Share of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Swing Line Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingprovided herein.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance and any Swingline Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (c) and SECTION 5.2, Facility B Lenders will (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Revolving Reserve Account to the extent required under Section 8.04:
(a) the Administrative Agent (and, with respect to any Swingline Advance, the Swingline Lender) shall have timely received therefor a Notice of Borrowing or Notice of Competitive with respect to such Advance (including the Borrowing as the case may be; Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.02;
(b) Administrative Agent immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall have received be satisfied (or in the Competitive Bid fees case of the Interest Coverage Ratio Test, was satisfied as provided for in SECTION 4.3 hereof, if applicable; of the most recent Monthly Reporting Date) (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(c) all each of the representations and warranties of any Consolidated Company set forth the Borrower, the Parent and the Collateral Manager contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); ;
(d) no change in the financial condition Default, Event of any Consolidated Company which is a Material Adverse Default, Potential Collateral Manager Termination Event shall have occurred; (e) no Default or Potential Default Collateral Manager Termination Event shall have occurred and be continuingcontinuing at the time of the making of such Advance or shall result upon the making of such Advance; and
(fe) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same Reinvestment Period shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writinghave terminated.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Main Street Capital CORP)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lenders to make or continue Revolving Facility Advances, or the obligation of the Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the following further conditions stated in SECTION precedent:
(a) On the date of a Borrowing pursuant to Section 2.3, SECTION 5.1before and immediately after giving effect thereto, the following statements shall be true and correct, and SECTION 5.2, Facility B Lenders will not be obligated to fund (the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on of the date of such Borrowing (or continuation, before and immediately after giving effect thereto): , the following statements are true and correct:
(ai) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the The representations and warranties contained in Article IV of any Consolidated Company set forth in the Loan Papers this Agreement are true and correct in all material respects (except to the extent that (i) the representations as though made on and warranties speak to a specific date or (ii) the facts on which as of such date, unless such representations and warranties are based have been changed by transactions contemplated expressly stated to be made as of an earlier date;
(ii) The Security Documents continue in full force and effect to secure all Obligations of the Borrower under this Agreement and any other Loan Documents;
(iii) The Borrower warrants and represents to the Lenders that the only encumbrances and other matters of record affecting the Collateral as of the date of this Agreement are those which were of record on the date the existing UCC filings were placed of record or permitted by those which are Permitted Liens;
(iv) After giving effect to (A) a requested Borrowing or continuation of a Revolving Facility Advance, neither the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also Unused Revolving Facility Commitment nor the Borrowing Base will be approved by Determining Lenders)less than zero; (dB) no a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and (D) a requested Borrowing consisting of an Acceptance, neither the Unused Revolving Facility Commitment nor the Unused Acceptance Sublimit is less than zero;
(v) No event has occurred and is continuing, or would result from such Borrowing or continuation, which constitutes an Event of Default or Default;
(vi) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part operations of the proceeds Borrower; and
(vii) The Borrower is in compliance with all covenants contained in Article V of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS this Agreement.
(b) or (c) of If requested by the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver have delivered to the Administrative Agent evidence substantiating any a Notice of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writing.ARTICLE IV
Appears in 1 contract
Samples: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Committed Lender to make any Loans is subject to the prior satisfaction of the following conditions stated in SECTION 2.3(unless waived pursuant to Section 9.14(a)); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and a Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the All representations and warranties of any Consolidated Company set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respects. Each condition precedent respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in this Facility B Agreement which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is material continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the transactions Administrative Agent and each Group Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Aggregate Advance Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in this Facility B Agreement, and time is favor of the essence Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of each thereof. Borrower’s Equity Interest in the Managing Member of any Subject Fund.
(e) All amounts for which reasonably detailed invoices have been received at least one (1) Business Day prior to the prior approval applicable Borrowing Date and that are required to be paid to Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of Determining Lendersthe documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, Lenders may fund shall have been paid in full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the Agents and the Group Agents.
(f) After giving effect to such proposed Borrowing and any Watched Fund identified in the Borrowing without all conditions being satisfiedBase Certificate, butthe Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the extent permitted by LawBorrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(i) No Sweep Event has occurred and is continuing and (ii) solely for purposes of determining whether the same amount of the requested Borrowing would cause the Outstanding Principal (including the amounts of the requested Borrowing) to exceed the Available Borrowing Base, each Subject Fund in respect of which a Subject Fund Sweep Event has occurred and is continuing shall not be deemed to be a waiver have an Advance Rate of 0%, and the Borrowing Notice, Borrowing Base Certificate and Aggregate Advance Model delivered by the Borrower pursuant to Section 3.2(c) shall reflect such Advance Rate of 0%.
(i) [Reserved.]
(j) No Bankruptcy Event shall have occurred with respect to SolarCity.
(k) The conditions precedent set forth in Section 3.3 with respect to any Current Systems have been satisfied in all respects as of the requirement that each Borrowing Date.
(l) All Accounts shall be funded in the amounts then required in accordance with the terms of the CADA.
(m) Other than with respect to the initial Borrowing, the Borrower shall have entered into all Interest Rate Protection Agreements required to have been entered into on such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingBorrowing Date under Section 2.13.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lenders to make available their Ratable Portion of each Tranche of each Borrowing is further subject to the conditions stated in SECTION 2.3satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by Section 2.02 and such other documents, SECTION 5.1opinions and instruments relating to the transactions contemplated hereby as any Lender or the Agent may reasonably request;
(b) immediately after the making of such Borrowing, and SECTION 5.2, Facility B Lenders the aggregate outstanding principal amount of the Advances will not be obligated to fund exceed the Commitments;
(as opposed to continue or convertc) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (immediately before and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which making of such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andBorrowing, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; ;
(d) the representations and warranties of the Credit Parties contained in this Agreement shall be true on and as of the date of the making of such Borrowing, unless such representation or warranty shall expressly relate to a different date;
(e) except as permitted in this Agreement, there has not been any material change of circumstances in respect of any of the Credit Parties or its shareholders;
(f) any inspection reports of the funding Vessels requested by the Agent as permitted hereunder shall be satisfactory to the Agent and the Agent shall be satisfied that upon a review of such Borrowings is permitted the class records by Law; the Agent or a surveyor appointed by the Agent that the Mortgaged Vessels are being properly maintained within the requirements of the relevant Classification Society;
(g) in the event all or any part each of the proceeds Credit Parties shall have complied with all laws, rules, regulations, contracts or other requirements which may be applicable to it, the absence of which would have a Material Adverse Effect on (1) any of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS Borrowers or the Guarantors, (b2) the Loan Documents or (c3) of the definition of Permitted Acquisition, Administrative Agent Collateral; and
(h) the Borrowers shall have timely received certified copies of any and paid, or caused to be paid, all purchase agreements costs (together withincluding legal fees), upon incurred by the request of Administrative Lenders, the Agent, all schedules the Security Trustee and exhibits thereto) executed by any Consolidated Company the Swap Provider in connection with such Permitted Acquisitionthe preparation, accompanied by all financial information, projections, execution and certifications required performance of this Agreement and the other Loan Documents. Unless waived by the Loan Papers in connection with a Permitted AcquisitionAgent or the Lenders, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to the making of such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower hereunder shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver representation and warranty by the Credit Parties to the Lenders on the date of such borrowing as to the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfacts specified in clauses (b), unless Determining Lenders specifically waive each such item in writing(c) and (d) of this Section 3.03.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.35.1 (except SECTION 5.1(b)), SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing or Swing line Borrowing), as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; ;
(b) Administrative Agent shall have received received, as applicable, the Competitive Bid fees provided for in SECTION 4.3 hereof or any fees then payable as provided for in SECTION 4.3 hereof4.2, if applicable; ;
(c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); ;
(d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; ;
(fe) the funding of such Borrowings Borrowing is permitted by Law; and
(g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (if) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), C) and (fD) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Lenders specifically waive each such item in writing.. 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
Appears in 1 contract
Samples: 364 Day Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, 7.1 and SECTION 5.27.2 (as applicable), Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing or issuance (and after giving effect thereto): ):
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may beNotice; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (dc) no change in the financial condition or business of any Consolidated Company the Companies which is could reasonably be expected to be a Material Adverse Event shall have occurred; (ed) no Default or Potential Default shall have occurred and be continuing; (fe) the funding of such Borrowings is permitted by Law; (gf) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated Distribution to the extent permitted by ITEMS (b) or (c) of the definition of Permitted AcquisitionSECTION 9.21, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2projections as Administrative Agent may reasonably request; and (ig) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, determination and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.35.1 (other than SECTION 5.1(b)), SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), as the case may be, unless on the date of such Borrowing (and after giving effect thereto): ), as the case may be:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; 364-DAY REVOLVING CREDIT AGREEMENT
(b) Administrative Agent shall have received received, as applicable, the Competitive Bid fees provided for in SECTION 4.3 hereof or any fees then payable as provided for in SECTION 4.3 hereof4.2, if applicable; ;
(c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); ;
(d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; ;
(fe) the funding of such Borrowings Borrowing is permitted by Law; and
(g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (if) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), ) and (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, funding unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Worldcom Inc/ga//)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, 7.1 and SECTION 5.27.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of Competitive Borrowing LC (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); (dc) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (ed) no Default or Potential Default shall have occurred and be continuing; (fe) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (if) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Integrated Orthopedics Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make each Loan shall be subject to the following conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless precedent that on the date of the Borrowing consisting of the Loans then being made by the Banks (a) the following statements shall be true and the Agent and each Bank shall have received an Officers' Certificate requesting such Borrowing (and after giving effect thereto): (aa "Request for Borrowing") Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent stating that (i) the representations and warranties speak to a specific contained in Article 5, in Section 7.14 and in the Security Documents are true on and as of the date or of such Borrowing with the same effect as though such representations and warranties had been made on and as of such Borrowing, (ii) the facts Banks have a valid equal and ratable perfected first priority Security Interest in the Collateral, subject only to Permitted Liens, (iii) there exists on which the date of such representations and warranties are based have been changed by transactions contemplated Borrowing no Event of Default or permitted by the Loan Papers andDefault, if applicable(iv) since April 30, supplemental Schedules have been delivered 1995, no material adverse change has occurred with respect thereto; provided that any changes to SCHEDULES 6.13the business, 7.12prospects, 7.13 earnings, properties or 7.20 must also be approved by Determining Lenders); (d) no change in the condition, financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part otherwise, of the proceeds of Company or the Borrowing will be used to finance Company and the Subsidiaries taken as a Permitted Acquisition contemplated by ITEMS whole (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon any material downward valuation by the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating Company or any Subsidiary of the matters in Aviation Units or any determination by the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice Company or any Subsidiary that a significant portion of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (eits Receivables is uncollectible), and (fv) above are true the business and correct in operations of the Company and all respects. Each condition precedent in this Facility B Agreement is material of the Subsidiaries as conducted at all times relevant to the transactions contemplated hereby to and including the close of business on the date of such Borrowing have been and are in this Facility B Agreementcompliance with applicable state and Federal laws, regulations and orders affecting the Company and each Subsidiary and its business and operations, or any of them, (b) for each Borrowing, the Agent and each Bank shall have received a Borrowing Base Certificate dated as of the date of such Borrowing, and time is of (c) the essence in respect of each thereof. Subject to Agent shall have received such other approvals, opinions or documents as the prior approval of Determining LendersAgent, Lenders or any Bank through the Agent, may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make an Advance on the occasion of any Borrowing shall be subject to the further conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless precedent that on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as in the case may be; (b) of the initial Borrowing the Administrative Agent shall have received evidence satisfactory to it that the Competitive Bid fees commitments of the lenders under the Existing Credit Agreement have been terminated and that all amounts owing under the Existing Credit Agreement have been paid in full or will be paid in full simultaneously with the making of (or out of the proceeds of) the initial Borrowing, including without limitation such amounts (if any) as provided may be required to compensate each Bank for any break-funding costs resulting from such payment, (b) the Administrative Agent shall have received a Notice of Borrowing in SECTION 4.3 hereof, if applicable; accordance with Section 2.02 and (c) all the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties of any Consolidated Company set forth contained in the Loan Papers Article V are true and correct in all material respects (on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andrefer to an earlier date, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also in which case they shall be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in material respects on and as of such earlier date and except that for the purposes of this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by LawSection 3.02, the same representations and warranties contained in Section 5.04(a) shall not be deemed to be a waiver refer to the most recent statements furnished pursuant to Section 6.02(c);
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the requirement that each proceeds therefrom, which constitutes or with the giving of notice, the lapse of time or both, would constitute a Default; and
(iii) after giving effect to any Borrowing of Advances and all other Borrowings of Advances which have been requested on or prior to such condition precedent be satisfied as a prerequisite for date but which have not been made prior to such date, the aggregate principal amount of the Advances owing to any subsequent funding, unless Determining Lenders specifically waive each Bank will not exceed the Total Commitment of such item in writingBank.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (d) and SECTION 5.2, Facility B Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Revolving Reserve Account to the extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent shall must have timely received therefor a Notice and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of Borrowing the Advance and such approval has not expired or Notice been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of Competitive Borrowing as the case may be; Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees as provided for Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in SECTION 4.3 hereof, if applicable; accordance with Section 2.03;
(c) all immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(d) each of the representations and warranties of any Consolidated Company set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; ;
(e) no Default Default, Event of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(f) the funding of such Borrowings is permitted by LawReinvestment Period shall not have terminated; and
(g) in after giving effect to such Advance, the event all or any part aggregate outstanding principal balance of the proceeds of Advances shall not exceed the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and sum of:
(i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determinationthe Aggregate Net Collateral Balance, and upon minus
(ii) the reasonable request of Administrative AgentMinimum Equity Amount, Borrower shall deliver to Administrative Agent evidence substantiating any of plus
(iii) the matters aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingPrincipal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3SECTIONS 7.1 and 7.2, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (any Borrowing, and Administrative Agent will not be obligated to issue any LC, as opposed to continue or convert) any Borrowing (including any Competitive Borrowing)the case may be, unless UNLESS on the date of such Borrowing (and after giving effect thereto): giving
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of Competitive Borrowing LC (TOGETHER WITH the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 hereof, if applicableSECTIONS 5.3 AND 5.4; (c) all of the representations and warranties of any Consolidated Company Loan Party (and, if prior to the Second Capital Date, DCCLP) set forth in the Loan Papers are true and correct in all material respects (except EXCEPT to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); (d) no change in the financial condition condition, business operations, or prospects of any Consolidated Company Loan Party (and, if prior to the Second Capital Date, DCCLP) which is could be a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is and issuance of such LC, as the case may be, are permitted by Law; (g) evidence satisfactory to Administrative Agent that such Borrowing may be made without violating the terms of the Senior Notes; (h) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated loan, advance, or Distribution to Parent to the extent permitted by ITEMS (b) SECTIONS 9.20 or (c) of the definition of Permitted Acquisition9.21, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2projections as Administrative Agent may reasonably request; and (i) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining UNLESS Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Logix Communications Enterprises Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) occasion of any Borrowing (including any Competitive the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in Article VII are correct on and as of the date of such Borrowing, upon giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), unless (A) no Floor Plan Event of Default exists with respect to the Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (and the acceptance of the proceeds of such Borrowing) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofto such Borrowing, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which if such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which Borrowing is a Material Adverse Event Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall have occurrednot exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no Default or Potential Default shall have occurred and be continuing; party (f) other than the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits theretothe Floor Plan Agent or a Lender) to any Intercreditor Agreement executed by any Consolidated Company in connection with such any Permitted AcquisitionNew Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, accompanied by all financial information, projectionscontest or breach involves $1,000,000 or more in collateral, and certifications required by such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related Agent or the Floor Plan Agent to such Borrowing must be satisfactory to Determining Lenders other party and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCompany.
Appears in 1 contract
Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition The agreement of Triple-A to make any Triple-A Loan hereunder (including, without limitation, the initial Triple-A Loan) shall be subject to satisfaction of each of the following conditions precedent:
(a) Each of the Administrative Agent, the Collateral Agent and Triple-A shall have received:
(i) a Settlement Report dated as of the most recent Settlement Date;
(ii) a timely Notice of Borrowing, appropriately filled-out by the Borrower;
(iii) a Servicer's Daily Report, appropriately filled-out by the Servicer as of the Borrowing Date (after giving effect to such Borrowing and to the conditions stated application of the proceeds therefrom); and
(iv) such other approvals or documents as the Administrative Agent may reasonably request in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund connection with the contemplated Borrowing;
(as opposed to continue or convertb) any Borrowing (including any Competitive Borrowing), unless on the date Borrowing Date of such Borrowing (Borrowing, before and after giving effect thereto): to such Borrowing, and to the application of the proceeds from such Borrowing, the following statements shall be true (a) Administrative Agent shall have timely received therefor a and each of the giving of the applicable Notice of Borrowing or Notice of Competitive Borrowing as and the case may be; (b) Administrative Agent shall have received acceptance by the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all Borrower of the representations proceeds of such Borrowing shall constitute a representation and warranties warranty by the Borrower that on the Borrowing Date of any Consolidated Company set forth in the Loan Papers are true such Borrowing, before and correct in all material respects (except after giving effect thereto and to the extent that application of the proceeds therefrom, such statements are true):
(i) the representations and warranties speak to a specific date or (ii) contained in Article IV and all representations and warranties of the facts on which Seller in the Purchase and Contribution Agreement are true and accurate as of such Borrowing Date in all material respects with the same force and effect as though such representations and warranties are based had been made as of such date;
(ii) no event has occurred and is continuing, or would result from such Borrowing, which constitutes an Event of Default, Unmatured Event of Default, Servicer Default or Unmatured Servicer Default, and there is no Termination Date currently in effect;
(iii) there exists no Borrowing Base Shortfall; and
(iv) (A) the proceeds of such Triple-A Loan shall be used (1) to acquire Advances or (2) to otherwise fund costs and expenses to be paid under the terms of the Facility Documents in connection with the transactions contemplated by the Purchase and Contribution Agreement, and (B) all conditions to such funding or acquisition under the Purchase and Contribution Agreement on such date have been changed by transactions contemplated satisfied;
(c) No event or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is circumstance having a Material Adverse Event Effect shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), and
(d), ) The aggregate commitments under the Liquidity Agreement shall equal or exceed the outstanding principal balance of all Triple-A Loans (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material after giving effect to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingBorrowing).
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and no LC Issuer will be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent (and LC Issuer, if applicable) shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent and the applicable LC Issuer shall have received received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 5.5 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions expressly contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent (or LC Issuers, as applicable) shall constitute the representation and warranty by Borrower Borrowers to Administrative Agent that (or LC Issuers, as applicable) that, as of the Borrowing Date or the date of issuance of the requested LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior written approval of Determining LendersRequired Lenders (or as otherwise set forth in SECTIONS 2.2(c) or 2.3(b)), Lenders may fund any Borrowing Borrowing, and LC Issuers may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Affiliated Computer Services Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any occasion of each Borrowing (including the initial Borrowing other than (a) below) shall be subject to the further conditions precedent that on the date of such Borrowing:
(a) The Lenders shall have received a certificate duly executed by the Chief Executive Officer, Chief Financial Officer, or Treasurer of the Borrower, setting forth the amount of the Borrowing and certifying that such Borrowing is consistent with and permitted by the Budget.
(b) the following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in each Loan Document are true and correct on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, other than any Competitive Borrowing)such representations or warranties that, unless on by their terms, refer to a date other than the date of such Borrowing (and after giving effect thereto): in such cases the representations and warranties shall be true and correct as of such date); and
(aii) Administrative Agent shall have timely received therefor a Notice of no event has occurred and is continuing, or would result from such Borrowing or Notice from the application of Competitive Borrowing as the case may be; proceeds therefrom, that constitutes a Default or an Event of Default.
(bc) Administrative Agent The Lenders shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all timely delivery of the representations most recent Budget (including weekly reconciliations) to be delivered hereunder in form and warranties of substance satisfactory to the Lenders.
(d) There shall have occurred no Material Adverse Change, with respect to any Consolidated Company set forth in Loan Party, since June 30, 2001, except for the Loan Papers are Parties having continued to operate at a loss consistent with operational losses experienced by the Loan Parties prior to June 30, 2001, and all information provided by the Borrower and the Guarantors to the Lenders prior to the date of such Borrowing shall be true and correct in all material respects respects.
(except to the extent e) There shall exist no action, suit, investigation, litigation or proceeding pending or threatened in any court or before any arbitrator or governmental instrumentality that (i) the representations and warranties speak could reasonably be expected to have a specific date Material Adverse Effect, or (ii) purports to materially adversely affect the facts on which such representations and warranties are based have been changed by legality, validity or enforceability of this Agreement, the Notes, the other Loan Documents, or the transactions contemplated or hereby and thereby.
(f) The Lenders shall have determined that the Borrowing is consistent with and permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; Budget.
(g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent Lenders shall have timely received certified copies of such other approvals, opinions or documents (including updated legal opinions) which any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders Lender may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.37.1, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and no LC Issuer will be obligated to issue, extend the expiry date of, renew, or increase the amount of any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance, extension, renewal, or increase (and after giving effect thereto): ), as the case may be:
(a) Administrative Agent (and LC Issuer, if applicable) shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent the applicable LC Issuer shall have received the Competitive Bid LC fees as provided for in SECTION 4.3 5.5(b) hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders)respects; (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuingcontinuing or shall arise as a result of the requested Borrowing or LC; and (fe) the funding of such Borrowings and issuance, extension, renewal, or increase of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent (or LC Issuers, as applicable) shall constitute the representation and warranty by Borrower to Administrative Agent that (or LC Issuers, as applicable) that, as of the Borrowing Date or the date of issuance of, extension of the expiry date of, or renewal or increase in the amount of the requested LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior written approval of Determining LendersRequired Lenders (or as otherwise set forth in SECTIONS 2.2(c) or 2.3(b)), Lenders may fund any Borrowing Borrowing, and LC Issuers may issue, extend the expiry date of, renew, or increase any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender Group (or any member thereof) to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any occasion of each Borrowing (including the initial Borrowing) or of the Agent to cause the Issuing Bank to issue any Competitive Borrowing), unless requested L/C shall be subject to the further conditions precedent that on the date of such Borrowing (Borrowing, or Letter of Credit Request, the following statements shall be true and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications notice required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c2.1(b), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same which notice shall not be deemed to be a waiver certification by the Borrower that:
(i) The representations and warranties contained in Section 5.1 are correct on and as of the requirement that each date of such Borrowing, or Letter of Credit Request, as though made on and as of such date;
(ii) No event has occurred and is continuing, or would result from such Borrowing, or Letter of Credit Request, which constitutes an Event of Default or Potential Event of Default;
(iii) Nothing shall have occurred and the Agent shall not have become aware of any fact or condition precedent not previously known, which the Agent shall determine has, or could reasonably be satisfied expected to have, a material adverse effect on the rights or remedies of the Lender Group, or on the ability of the Borrower to perform its obligations to the Lender Group or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, property, assets, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a prerequisite whole; and
(iv) The security interests and liens in favor of the Lender Group are valid, enforceable, and prior to all others' rights and interests, except those the Agent consents to in writing; and
(v) All Loan Documents are in full force and effect; and (b) the Agent shall have received such other approvals, opinions or documents as the Agent may reasonably request.
11. Subsection 6.2(a) of the Agreement is hereby amended to read in its entirety as follows:
(a) CONSOLIDATED NET WORTH. At any time, permit Consolidated Net Worth to be less than $35,000,000; which such minimum amount of Consolidated Net Worth shall be increased (i) at the end of each fiscal quarter of the Borrower, commencing with Borrower's fiscal quarter ending June 30, 1998, by an amount equal to 75% of the consolidated net income of Borrower for such fiscal quarter, determined in accordance with GAAP, PROVIDED, HOWEVER, that if Borrower's net income for any subsequent fundingfiscal quarter, unless Determining Lenders specifically waive each determined in accordance with GAAP, shall be less than zero, then no adjustment to such item minimum amount of Consolidate Net Worth shall be made; and (ii) at such time Borrower shall issue equity securities, by an amount equal to 100% of the issuance proceeds (net of ordinary and customary underwriters' discounts and commissions, and costs, fees, and expenses incurred in writingconnection with such issuance).
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated in SECTION 2.3(unless waived pursuant to Section 9.12(a)); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and a Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the All representations and warranties of any Consolidated Company set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify modified by materiality by their own terms, [***] Confidential treatment has been requested for such Borrowingthe bracketed portions. Each Notice of Borrowing delivered to Administrative Agent The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respects. Each respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Advance Models in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Facility B Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated Agents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Asset identified in this Facility B Agreementthe Borrowing Base Certificate, the Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(h) Each Current Project shall (i) be a Project subject to a Subject Fund, (ii) satisfy (x) the Eligibility Representations and time is (y) the objective credit requirements of the essence applicable Subject Fund, or otherwise be identified as a Watched System in the Borrowing Base Certificate and (iii) be fully funded by the applicable Investor pursuant to the applicable Project Document, including [***] any Liens granted with respect to such Current Project to SolarCity, as seller, for payment of the Current Project’s purchase price under the applicable Project Document shall have been extinguished.
(i) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document in respect of a the Subject Funds and (ii) each thereofCustomer Agreement, in each case with respect to a Current Project.
(j) The requested Borrowing exceeds $5,000,000 or such lesser amount as is remaining under the Commitment. Subject [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(k) No Bankruptcy Event shall have occurred with respect to the prior approval of Determining Lenders, Lenders may fund SolarCity.
(l) As reasonably requested by any Borrowing without all conditions being satisfied, butLender for informational purposes only, to the extent permitted by Lawnot otherwise publicly available and in possession of the Borrower or its Affiliates, the same shall Borrower has delivered to such Lender financial statements and/or credit reports with respect to a Current Project with a commercial Host Customer that does not be deemed to be have a waiver publicly available rating from a recognized national rating agency that was current as of the requirement date that each the Customer Agreement corresponding to such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCurrent Project was executed.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Section 7.1 and Section 7.2 (as applicable), SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, unless on the date of such Borrowing or issuance (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing as LC Request (together with the case may beapplicable LC Agreement); (b) Administrative Agent shall have received received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 hereof, if applicableSection 5.4; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition or business of any Consolidated Company the Companies which is could reasonably be expected to be a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings or issuance of such LC is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated Distribution to the extent permitted by ITEMS (b) or (c) of the definition of Permitted AcquisitionSection 9.21, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2projections as Administrative Agent may reasonably request; and (ih) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the LC, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make each Loan (including, to the extent relevant, the initial Loans hereunder) is subject to the satisfaction of the following conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated precedent:
(a) On or prior to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of the making of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as Loan, the case may be; (b) Administrative Agent shall have received from the Competitive Bid fees as provided for Borrower a Notice of Borrowing in SECTION 4.3 hereof, if applicable; accordance with the terms of this Agreement.
(cb) all of the The representations and warranties of any Consolidated Company set forth the Borrower contained in Section 6.1 of this Agreement and in the other Loan Papers are Documents shall be true and correct in all material respects on and as of the date of such Loan (except for those representations or warranties or parts thereof that, by their terms, expressly relate solely to a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specific date and, except at any time after the extent that (i) Closing Date, the representations and warranties speak contained in Sections 6.1(j) and (k)), before and after giving effect to a specific date or such Loan, and to the application of the proceeds therefrom, as though made on and as of such date.
(iic) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no No Default or Potential Event of Default shall have occurred and be continuing; continuing or would result from such Loan.
(d) The Administrative Agent having received satisfactory evidence that (i) an aggregate principal amount outstanding under the Existing Credit Agreement shall have been repaid (or the proceeds of the Loans shall be applied to pay an aggregate principal amount under the Existing Credit Agreement) in the principal amount of the Loans being requested on the date of such Loan and, if all outstanding amounts under the Existing Credit Agreement are being repaid in full, the Existing Credit Agreement shall have been terminated and (ii) satisfactory arrangements shall have been made for the termination of all liens granted in connection with the amounts being repaid under the Existing Credit Agreement and, if all outstanding amounts under the Existing Credit Agreement are being repaid in full, all liens granted in connection with the Existing Credit Agreement shall have been terminated.
(e) The Administrative Agent having received general mortgage bonds in an aggregate principal amount equal to at least the aggregate principal amount of the Loans being requested on the date of such Loan and an opinion of counsel to the Borrower, in form and substance reasonably satisfactory to the Administrative Agent, in respect of the Collateral, and all documents and instruments required to create a perfected security interest therein, prior and superior in right to any other Person, shall have been executed and be in proper form for filing.
(f) Each of the funding giving of such Borrowings is permitted any applicable Notice of Borrowing or the acceptance by Law; (g) in the event all or any part Borrower of the proceeds of the each Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the a representation and warranty by the Borrower to Administrative Agent that on the date of such Loan that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent conditions contained in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being Section 5.2 have been satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Credit Agreement (Centerpoint Energy Houston Electric LLC)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) occasion of any Borrowing (including any Competitive the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in Article VII are correct on and as of the date of such Borrowing, upon giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), unless (A) no Floor Plan Event of Default exists with respect to the Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (and the acceptance of the proceeds of such Borrowing) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofto such Borrowing, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which if such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which Borrowing is a Material Adverse Event Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall have occurrednot exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no Default or Potential Default shall have occurred and be continuing; party (f) other than the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits theretothe Floor Plan Agent or a Lender) to any Intercreditor Agreement executed by any Consolidated Company in connection with such any Permitted AcquisitionNew Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, accompanied by all financial information, projectionscontest or breach involves $1,000,000 or more in collateral, and certifications required by such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related Agent or the Floor Plan Agent to such Borrowing must be satisfactory to Determining Lenders other party and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCompany.
Appears in 1 contract
Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) occasion of any Borrowing (including any Competitive the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in Article VII are correct on and as of the date of such Borrowing, upon giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), unless (A) no Floor Plan Event of Default exists with respect to the Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (and the acceptance of the proceeds of such Borrowing) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofto such Borrowing, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) if such Borrowing is an Acquisition Loan Borrowing, the facts on which aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which Borrowing is a Material Adverse Event Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall have occurrednot exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no Default or Potential Default shall have occurred and be continuing; party (f) other than the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits theretothe Floor Plan Agent or a Lender) to any Intercreditor Agreement executed by any Consolidated Company in connection with such any Permitted AcquisitionNew Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, accompanied by all financial information, projectionscontest or breach involves $1,000,000 or more in collateral, and certifications required by such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related Agent or the Floor Plan Agent to such Borrowing must be satisfactory to Determining Lenders other party and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCompany.
Appears in 1 contract
Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Section 7.1, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the Competitive Bid LC fronting fees as provided for in SECTION 4.3 Section 5.4(b) hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenderstrue and correct in all material respects as of such earlier date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the request LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writingwriting with respect to such subsequent funding or issuance.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3SECTIONS 7.1, SECTION 5.17.2, and SECTION 5.27.3, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received timely received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 hereof, if applicable5.4; (c) all of the representations and warranties of any Consolidated each Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition or business of any Consolidated Company which is could be a Material Adverse Event shall have occurredoccurred since the date of the Current Financials delivered by Borrower to Lenders pursuant to SECTION 7.2 of the Credit Agreement; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is and issuance of such LC, as the case may be, are permitted by Law; and (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Coorstek Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fulfillment of the date of such Borrowing (and after giving effect thereto): following conditions:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees as provided for Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in SECTION 4.3 hereofaccordance with Section 2.03;
(b) immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and each Collateral Quality Test shall be satisfied (or, if applicable; not satisfied, maintained or improved, in each case, as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing;
(c) all each of the representations and warranties of any Consolidated Company set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); ;
(d) no change in the financial condition Default, Event of any Consolidated Company which is a Material Adverse Default, Potential Servicer Removal Event shall have occurred; (e) no Default or Potential Default Servicer Removal Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) the Reinvestment Period shall not have terminated;
(f) after giving effect to such Advance, the funding Dollar Equivalent of such Borrowings is permitted by Law; the aggregate principal amount of all Advances denominated in an Available Currency other than Dollars shall not exceed the Non-Dollar Sublimit;
(g) in subject to Section 2.02, the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies approved of any the Approval Request for each Collateral Loan to be acquired with the proceeds of such Advance and such approval has not expired or been rescinded; and
(h) after giving effect to such Advance, the aggregate outstanding principal balance of all purchase agreements (together with, upon Advances shall not exceed the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and sum of:
(i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determinationthe Aggregate Net Collateral Balance, and upon minus
(ii) the reasonable request of Administrative AgentMinimum Equity Amount, Borrower shall deliver to Administrative Agent evidence substantiating any plus
(iii) the Dollar Equivalent of the matters aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingPrincipal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Pennantpark Investment Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated (unless waived in SECTION 2.3writing by the Lenders in their sole and absolute discretion); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and a Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the All representations and warranties of any Consolidated Company set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respectsrespects as of the Borrowing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date). Each Trapper Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Sizing Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Facility B Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated in this Facility B Agents and the Lenders.
(f) No Material Adverse Effect has occurred or is continuing since the Closing Date.
(g) Each Current Project shall be a Project subject to the Master Lease, and if any Current Project is a Commercial Project, then the commercial Host Customer met the Minimum Commercial Credit Standard as of the closing date of the applicable Lease Tranche under the Master Lease for such Current Project; provided, it shall not be a condition to a Borrowing that the commercial Host Customer meet the Minimum Commercial Credit Standard with respect to the Host Customer site being owner-occupied and not leased, so long as (i) such Host Customer is an Investment Grade Host Customer and (ii) the term of the lease entered into by such Host Customer with respect to such site is the same or longer than such Host Customer’s Customer Agreement.
(h) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document, (ii) each Customer Agreement, and time is (iii) the Closing Certificate, in each case with respect to a Current Project, duly executed and delivered by each party thereto and in form and substance satisfactory to the Lenders. Trapper Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(i) With respect to the final Borrowing, the Administrative Agent and the Lenders shall have received copies of the essence in True-Up Reports delivered by Borrower to, and accepted by, Lessee under Section 6.7 of the Master Lease with respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to Current Project or Funded Project.
(j) To the extent permitted by Lawissued or delivered pursuant to Section 6.8 of the Master Lease, the same Collateral Agent shall not have received the Master Lease Letter of Credit, which shall be deemed in full force and effect.
(k) To the extent the Master Lease is amended, or waived to be a waiver permit, the acceptance of Customer Agreements with [***] terms as described in clause (D) of the requirement that each such condition precedent be satisfied as first proviso in Section 6.11(a), no Current Project for a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingResidential Project has a Customer Agreement with [***] terms.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any occasion of each Borrowing (including any Competitive the Initial Borrowing), unless ) shall be subject to the satisfaction of the conditions set forth in Section 3.01 (to the extent not previously satisfied pursuant to that Section) and such further conditions precedent that on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent the following statements shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as be true and the case may be; (b) Administrative Agent shall have received for the Competitive Bid fees account of such Lender (w) a Notice of Borrowing and an Availability Certificate dated the date of such Borrowing, and, in the case of the Availability Certificate, certifying that the Facility Available Amount as provided for in SECTION 4.3 hereof, if applicable; of such date (ccalculated on a pro forma basis after giving effect to such Borrowing) will be greater than or equal to the Facility Exposure (x) all Deliverables and all items described in the definition of “BBA Proposal Package” herein (to the extent not previously delivered with respect to each Borrowing Base Asset pursuant to Section 5.01(k) or this Section 3.02), (y) in the case of an addition of any Person as an Additional Guarantor, all Guarantor Deliverables (to the extent not previously delivered pursuant to Section 5.01(k) or this Section 3.02), and (z) a certificate signed by a Responsible Officer of the Borrower, dated the date of such Borrowing, stating that:
(i) the representations and warranties of any Consolidated Company set forth contained in the each Loan Papers Document are true and correct in all material respects (except unless qualified as to the extent that (i) the representations and warranties speak to a specific date materiality or (ii) the facts on Material Adverse Effect, in which case such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also shall be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material ) on and as of such date, before and after giving effect to the transactions contemplated in this Facility B Agreement(A) such Borrowing, and time is (B) in the case of any Borrowing, the application of the essence in respect proceeds therefrom, as though made on and as of such date;
(ii) no Default or Event of Default has occurred and is continuing, or would result from (A) such Borrowing or (B) or from the application of the proceeds therefrom; and
(iii) for each thereof. Subject Advance, (A) the Facility Available Amount equals or exceeds the Facility Exposure that will be outstanding after giving effect to the prior approval of Determining Lenderssuch Advance, Lenders may fund any Borrowing without all conditions being satisfied, but, and (B) before and after giving effect to the extent permitted by Lawsuch Advance, the same Parent Guarantor shall not be deemed to be a waiver of in compliance with the requirement that each covenants contained in Section 5.04; 55 and (b) the Administrative Agent shall have received such condition precedent be satisfied other approvals, opinions or documents as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingLender through the Administrative Agent may reasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance and any Swingline Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (c) and SECTION 5.2, Facility B Lenders will (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Revolving Reserve Account to the extent required under Section 8.04:
(a) the Administrative Agent (and, with respect to any Swingline Advance, the Swingline Lender) shall have timely received therefor a Notice of Borrowing or Notice of Competitive with respect to such Advance (including the Borrowing as the case may be; Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.02;
(b) Administrative Agent immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall have received be satisfied (or in the Competitive Bid fees case of the Interest Coverage Ratio Test, was satisfied as provided for in SECTION 4.3 hereof, if applicable; of the most recent Monthly Reporting Date) (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(c) all each of the representations and warranties of any Consolidated Company set forth the Borrower, the Parent and the Collateral Manager contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); 750499896 22723957
(d) no change in the financial condition Default, Event of any Consolidated Company which is a Material Adverse Default, Potential Collateral Manager Termination Event shall have occurred; (e) no Default or Potential Default Collateral Manager Termination Event shall have occurred and be continuingcontinuing at the time of the making of such Advance or shall result upon the making of such Advance; and
(fe) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same Reinvestment Period shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writinghave terminated.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated in SECTION 2.3(unless waived pursuant to Section 9.12(a)); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and a Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the All representations and warranties of any Consolidated Company set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respects. Each respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Advance Models in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Facility B Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated Agents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Asset identified in this Facility B Agreementthe Borrowing Base Certificate, the Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(h) Each Current Project shall (i) be a Project subject to a Subject Fund, (ii) satisfy (x) the Eligibility Representations and time is (y) the objective credit requirements of the essence applicable Subject Fund, or otherwise be identified as a Watched System in the Borrowing Base Certificate and (iii) be fully funded by the applicable Investor pursuant to the applicable Project Document, [***].
(i) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document in respect of a the Subject Funds and (ii) each thereofCustomer Agreement, in each case with respect to a Current Project. Subject [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(j) The requested Borrowing exceeds $5,000,000 or such lesser amount as is remaining under the Commitment.
(k) No Bankruptcy Event shall have occurred with respect to the prior approval of Determining Lenders, Lenders may fund SolarCity.
(l) As reasonably requested by any Borrowing without all conditions being satisfied, butLender for informational purposes only, to the extent permitted by Lawnot otherwise publicly available and in possession of the Borrower or its Affiliates, the same shall Borrower has delivered to such Lender financial statements and/or credit reports with respect to a Current Project with a commercial Host Customer that does not be deemed to be have a waiver publicly available rating from a recognized national rating agency that was current as of the requirement date that each the Customer Agreement corresponding to such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCurrent Project was executed.
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, 7.1 and SECTION 5.27.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of Competitive Borrowing LC (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 5.3 and 5.4 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); (d) no change in the financial condition or business of any Consolidated Company or any Guarantor which is could be a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated Distribution to the extent permitted by ITEMS (b) or (c) of the definition of Permitted AcquisitionSECTION 9.21, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2projections as Administrative Agent may reasonably request; and (ih) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dobson Communications Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) occasion of any Borrowing (including any Competitive the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in Article VII are correct on and as of the date of such Borrowing, upon giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), unless (A) no Floor Plan Event of Default exists with respect to the Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (and the acceptance of the proceeds of such Borrowing) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofto such Borrowing, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) if such Borrowing is an Acquisition Loan Borrowing, the facts on which aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such representations Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and warranties are based have been changed by transactions contemplated or permitted (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the Loan Papers relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred;
(e) no Default or Potential Default shall have occurred and be continuing; party (f) other than the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits theretothe Floor Plan Agent or a Lender) to any Intercreditor Agreement executed by any Consolidated Company in connection with such any Permitted AcquisitionNew Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, accompanied by all financial information, projectionscontest or breach involves $1,000,000 or more in collateral, and certifications required by such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related Agent or the Floor Plan Agent to such Borrowing must be satisfactory to Determining Lenders other party and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCompany.
Appears in 1 contract
Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Section 7.1, SECTION 5.1, and SECTION 5.2, Facility B the Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and no Issuing Lender will be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) the Administrative Agent or an Issuing Lender (as applicable) shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) the Administrative Agent shall have received (as applicable) the Competitive Bid LC fees as provided for in SECTION 4.3 Section 5.4 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in . Each Borrowing Notice and LC Request delivered to the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements the Issuing Lenders (together with, upon the request of Administrative Agent, all schedules and exhibits theretoas applicable) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower the Borrowers to the Administrative Agent that and the Issuing Lenders that, as of the Borrowing Date or the date of issuance of the LC (as the case may be) the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining the Required Lenders, the Lenders may fund any Borrowing Borrowing, and the Issuing Lenders may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining the Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (d) and SECTION 5.2, Facility B Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Revolving Reserve Account to the extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent shall must have timely received therefor a Notice and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of Borrowing the Advance and such approval has not expired or Notice been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of Competitive Borrowing as the case may be; Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees as provided for Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in SECTION 4.3 hereof, if applicable; accordance with Section 2.03;
(c) all immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(d) each of the representations and warranties of any Consolidated Company set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; ;
(e) no Default Default, Event of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(f) the funding of such Borrowings is permitted by LawReinvestment Period shall not have terminated; and
(g) in after giving effect to such Advance, the event all or any part aggregate outstanding principal balance of the proceeds of Advances shall not exceed the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and sum of:
(i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determinationthe Aggregate Net Collateral Balance, and upon minus
(ii) the reasonable request of Administrative AgentMinimum Equity Amount, Borrower shall deliver to Administrative Agent evidence substantiating any of plus
(iii) the matters aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such BorrowingPrincipal Collection Subaccount constituting Principal Proceeds. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writing.USActive 51774144.2053776213.6-67-
Appears in 1 contract
Samples: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Sections 7.1 and 7.2, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received timely received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 hereof, if applicableSections 5.4 and 5.5; (c) all of the representations and warranties of any Consolidated each Company set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition or business of any Consolidated Company which is could be a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is and issuance of such LC, as the case may be, are permitted by Law; and (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Acx Technologies Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (c) and SECTION 5.2, Facility B Lenders will (d) (other than a Default or Event of Default described in Section 6.01(g)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Delayed Drawdown Collateral Loans or Revolving Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Unfunded Reserve Account to the extent required under Section 8.04:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Lenders and the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees as provided for Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in SECTION 4.3 hereofaccordance with Section 2.02;
(b) immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test and the Collateral Quality Test shall be satisfied (or, in the case of the Collateral Quality Test, if applicable; the Collateral Quality Test was not satisfied immediately before the making of such Advance, the Collateral Quality Test is maintained or improved) (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing and certified by a Responsible Officer of the Borrower (or the Collateral Manager on behalf of the Borrower));
(c) all each of the representations and warranties of any Consolidated Company set forth the Borrower contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); ;
(d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Event of Default shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(fe) the funding of such Borrowings is permitted by Law; Borrower and the Collateral Manager shall have received written notice from the Administrative Agent (g) in with a copy to the event all or any part Collateral Administrator), evidencing the approval of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS Administrative Agent in its sole discretion, in accordance with clause (b) or (cA) of the definition of Permitted Acquisition“Eligible Loan”, Administrative Agent shall have timely received certified copies of the Collateral Loans to be added to the Collateral (if any and all purchase agreements (together with, upon Collateral Loans are to be added to the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company Collateral in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2Advance); and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and and
(f) above are true after the making of such Advances and correct in all respects. Each condition precedent in this Facility B Agreement the deposit of any portion thereof into the Unfunded Reserve Account, the amount on deposit therein is material at least equal to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingUnfunded Reserve Required Amount.
Appears in 1 contract
Samples: Credit and Security Agreement (FS Investment Corp II)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.37.1, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the Competitive Bid LC fronting fees as provided for in SECTION 4.3 5.4(b) hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenderstrue and correct in all material respects as of such earlier date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such 29 NBPLP CREDIT AGREEMENT Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the request LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make each Loan shall be subject to the following conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless precedent that on the date of the Borrowing consisting of the Loans then being made by the Banks (a) the following statements shall be true and the Agent and each Bank shall have received an Officers' Certificate requesting such Borrowing (and after giving effect thereto): (aa "Request for Borrowing") Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent stating that (i) the representations and warranties speak to a specific contained in Article 5, in Section 7.14 and in the Security Documents are true on and as of the date or of such Borrowing with the same effect as though such representations and warranties had been made on and as of such Borrowing, (ii) the facts Creditors have a valid, equal and ratable perfected first priority Security Interest in the Collateral, subject only to Permitted Liens, (iii) there exists on which the date of such representations and warranties are based have been changed by transactions contemplated Borrowing no Event of Default or permitted by the Loan Papers andDefault, if applicable(iv) since April 30, supplemental Schedules have been delivered 1997, no material adverse change has occurred with respect thereto; provided that any changes to SCHEDULES 6.13the business, 7.12prospects, 7.13 earnings, properties or 7.20 must also be approved by Determining Lenders); condition, financial or otherwise, of PHI or PHI and the PHI Subsidiaries taken as a whole (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any material downward valuation by PHI or any PHI Subsidiary of the matters Aviation Units, as such term is defined in the PHI Loan Papers which are necessary to enable Borrower to qualify for Agreement, or any determination by PHI or any PHI Subsidiary that a significant portion of its Receivables, as such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute term is defined in the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (cPHI Loan Agreement, is uncollectible), (d)v) since the Effective Date no material adverse change has occurred with respect to the business, prospects, earnings, properties or condition, financial or otherwise, of the Company or the Company and its Subsidiaries taken as a whole (eincluding, without limitation, any material downward valuation by the Company of the Aviation Units or any determination by the Company that a significant portion of its Receivables is uncollectible), and (fvi) above are true the business and correct in operations of the Company and all respects. Each condition precedent in this Facility B Agreement is material of the Subsidiaries as conducted at all times relevant to the transactions contemplated hereby to and including the close of business on the date of such Borrowing have been and are in this Facility B Agreementcompliance with applicable state and Federal laws, regulations and orders affecting the Company and each Subsidiary and its business and operations, or any of them, (b) for each Borrowing, the Agent and each Bank shall have received a Borrowing Base Certificate dated as of the date of such Borrowing, and time is of (c) the essence in respect of each thereof. Subject to Agent shall have received such other approvals, opinions or documents as the prior approval of Determining LendersAgent, Lenders or any Bank through the Agent, may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make each extension of credit (including, to the extent relevant, the initial Loans hereunder and any issuance of a Letter of Credit) is subject to the satisfaction of the following conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated precedent:
(a) On or prior to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): (a) extension of credit, the Administrative Agent shall have timely received therefor from the Borrower a Notice of Borrowing or Notice of Competitive Borrowing an Application, as the case may be, in accordance with the terms of this Agreement, or, in the case of the issuance, extension or increase of any Letter of Credit, the instruments required under Section 2.7 in respect thereof; provided that on the Closing Date, the Borrower shall have been deemed to have submitted a Notice of Borrowing for ABR Loans in the full amount of the Term Commitments of all the Banks (b) unless the Borrower shall have notified the Administrative Agent in accordance with Section 2.2 that it is requesting that the Term Loans be made on the Closing Date as LIBOR Loans), and the Borrower shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of been deemed to have made the representations and warranties of any Consolidated Company set forth contained in the Notice of Borrowing.
(b) The representations and warranties of the Borrower contained in Section 6.1 of this Agreement and in the other Loan Papers are Documents shall be true and correct in all material respects on and as of the date of such extension of credit (except for those representations or warranties or parts thereof that, by their terms, expressly relate solely to a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specific date and, except in the extent that (i) case of a Revolving Borrowing the proceeds of which are used solely to refund commercial paper maturing at the time of such Revolving Borrowing, the representations and warranties speak contained in Sections 6.1(j) and (k)), before and after giving effect to a specific date or such extension of credit, and to the application of the proceeds therefrom, as though made on and as of such date.
(iic) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no No Default or Potential Event of Default shall have occurred and be continuing; continuing or would result from such Borrowing or issuance, increase or extension.
(fd) Each of the funding giving of such Borrowings is permitted any applicable Notice of Borrowing or Application, as the case may be, the acceptance by Law; (g) in the event all or any part Borrower of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) each Borrowing, and each Letter of Credit issued on behalf of the definition of Permitted AcquisitionBorrower, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the a representation and warranty by the Borrower to Administrative Agent that on the date of such extension of credit that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent conditions contained in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being Section 5.2 have been satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make Term Loans on each Credit Date (including the Effective Date) is subject to the satisfaction (or waiver) of the following further conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): precedent:
(a) [Reserved].
(b) The Borrower shall have delivered to the Administrative Agent a duly executed and completed Borrowing Request in accordance with Section 2.02.
(c) The Collateral Agent, for the benefit of the Secured Parties, shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing valid and perfected Liens on all Collateral, to the extent contemplated hereby, and pursuant to the other Loan Documents, including the applicable DIP Financing Order.
(d) The Loan Parties shall have complied and shall be in compliance, in each case, in all material respects, with the Interim DIP Financing Order and the Final DIP Financing Order, as the case may be; .
(be) Administrative Agent The making of such Term Loan shall not violate any material applicable requirement of law and shall not be enjoined, temporarily, preliminarily or permanently.
(f) The Loan Parties shall be in compliance in all material respects with each First Day Order and Second Day Order then in effect.
(g) There shall not have received occurred a Material Adverse Effect since the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; Effective Date.
(ch) all of the The representations and warranties of any Consolidated Company set forth in the Loan Papers Parties contained in Article VI or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on unless otherwise qualified by materiality in which case such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also shall be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material ) on and as of the Credit Date, both before and immediately after giving effect to the transactions contemplated in this Facility B Agreement, and time is making of the essence in respect Term Loan on such Credit Date and the application of each thereof. Subject to the prior approval of Determining Lendersproceeds therefrom, Lenders may fund any Borrowing without all conditions being satisfied, but, as though made on such date; provided that to the extent permitted that such representations and warranties specifically refer to an earlier date, then such representations and warranties shall be true and correct in all material respects (unless otherwise qualified by Lawmateriality in which case such representations and warranties shall be true and correct in all respects) as of such earlier date.
(i) As of the applicable Credit Date, (i) no Default or Event of Default shall exist or would result from the making of such Term Loan and the application of proceeds therefrom and (ii) the Borrower shall be in pro forma compliance with the covenant set forth in Section 8.20.
(j) The Administrative Agent shall have received a certificate, dated as of applicable Credit Date and signed by a Responsible Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 5.02.
(k) The Borrower shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees and expenses then earned, due and payable under the Loan Documents (including, without limitation, the same fees, costs and expenses of counsel and the other advisors to the Administrative Agent and the Lenders). Each Borrowing shall not be deemed to be constitute a waiver representation and warranty by the Borrower on the date of such Borrowing, issuance, amendment, extension or renewal as applicable, as to the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item matters specified in writingthis Section 5.02.
Appears in 1 contract
Samples: Term Loan Credit Agreement (RVL Pharmaceuticals PLC)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Section 7.1, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the Competitive Bid LC fronting fees as provided for in SECTION 4.3 Section 5.4(b) hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenderstrue and correct in all material respects as of such earlier date); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; and (fe) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the request LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3Sections 7.1, SECTION 5.1Section 7.2 (as applicable) and 7.3(a), and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): ), as the case may be: (ai) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may beNotice; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (cii) all of the representations and warranties of any Consolidated Company Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (ix) the representations and warranties speak to a specific date or (iiy) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (diii) no change in the financial condition or business of Communications and its Restricted Subsidiaries, any Consolidated Company Company, or any other Guarantor which is could reasonably be expected to be a Material Adverse Event shall have occurred; (eiv) no Default or Potential Default shall have occurred and be continuing; (fv) the funding of such Borrowings is permitted by Law; (gvi) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated Distribution to the extent permitted by ITEMS (b) or (c) of the definition of Permitted AcquisitionSection 9.20, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projectionsand projections as Administrative Agent may reasonably request; (vii) Administrative Agent shall have received, as requested, evidence that the Debt to be incurred as a result of such Borrowing has been incurred or entered into in compliance with the requirements of the Communications Bond Debt, any Exchange Debenture Indenture, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2Certificates of Designation for the Preferred Stock; (viii) the Borrower shall have satisfied such additional conditions precedent as the Administrative Agent or the Required Lenders may require and (iix) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit Agreement (Dobson Communications Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of --------------------------------------- the Lender Group (or any member thereof) to make a Loan on the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any occasion of each Borrowing (including the initial Borrowing) or of the Agent to cause the Issuing Bank to issue any Competitive Borrowing), unless requested L/C shall be subject to the further conditions precedent that on the date of such Borrowing (and after giving effect thereto): Borrowing, or Letter of Credit Request:
(a) Administrative Agent the following statements shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as be true and the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofnotice required by Section 2.2(a), if applicable; which notice shall be deemed to -------------- be a certification by the Borrower that:
(ci) all of the The representations and warranties contained in Section 5.1 ----------- are correct on and as of any Consolidated Company set forth in the Loan Papers are true date of such Borrowing or the issuance of such requested L/C as though made on and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or as of such date;
(ii) No event has occurred and is continuing, or would result from such Borrowing, or the facts on issuance of the requested L/C, which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition constitutes an Event of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default Event of Default;
(iii) Nothing shall have occurred and the Agent shall not have become aware of any fact or condition not previously known, which the Agent shall determine has, or could reasonably be continuing; (f) expected to have, a material adverse effect on the funding of such Borrowings is permitted by Law; (g) in the event all rights or any part remedies of the proceeds Lender Group, or on the ability of the Borrowing will Borrower to perform its obligations to the Lender Group or which has, or could reasonably be used expected to finance have, a Permitted Acquisition contemplated by ITEMS materially adverse effect on the performance, business, property, assets, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; and
(iv) The security interests and liens in favor of the Lender Group are valid, enforceable, and prior to all others' rights and interests, except those the Agent consents to in writing; and
(v) All Loan Documents are in full force and effect; and
(b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies such other approvals, opinions or documents as the Agent may reasonably request. The foregoing conditions precedent are not conditions to each Lender participating in or reimbursing Agent for such Lender's Pro Rata Share of any and all purchase agreements (together with, upon the request of Administrative drawings under L/Cs or Revolving Loans made by Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisitioneach case, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingprovided herein.
Appears in 1 contract
Samples: Credit and Security Agreement (Emergent Information Technologies Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, precedent that the Effective Date shall have occurred and SECTION 5.2, Facility B Lenders will not on the date of such Borrowing:
(a) the following statements shall be obligated to fund true (as opposed to continue or convert) any and each of the giving of the applicable Notice of Borrowing (including any Competitive Borrowing), unless and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 are correct on and as of the date of such Borrowing, before and after giving effect to a specific date or such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the facts on which application of the proceeds therefrom, that constitutes a Default;
(b) the Lender shall have received such representations and warranties are based have been changed by transactions contemplated other approvals, opinions or permitted by documents as the Loan Papers andLender may reasonably request;
(c) the Lender shall be satisfied, if applicablein its reasonable discretion, supplemental Schedules have been delivered that the Accounting presented to it in connection with respect thereto; provided such Borrowing shall demonstrate that any changes the Borrower requires the funds from such Borrowing to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); meet its working capital needs for the next thirty (30) days;
(d) no change in the Borrower shall have delivered to the Lender within seven Business Days of the date hereof, the audited Consolidated balance sheet of the Borrower and its Subsidiaries as at January 31, 2001 (and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended (the "Audited Financial Statements"), accompanied by an unqualified opinion of KPMG, LLP, independent public accountants, which fairly present the Consolidated financial condition of any the Borrower and its Subsidiaries as at such date and the Consolidated Company which is a Material Adverse Event shall have occurred; results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied;
(e) no Default or Potential Default shall have occurred the Audited Financial Statements are similar in all material respects as to form and be continuingcontent to the Unaudited Financial Statements; and
(f) the funding UCC-1 financing statements filed by Support Net Inc. with Xxxxxxxx County, Ohio and the Ohio Secretary of such Borrowings is permitted by Law; (g) in the event all or any part State on August 11, 1998 and July 31, 1998 regarding certain assets of the proceeds of the Borrowing will Borrower shall be used to finance a Permitted Acquisition contemplated by ITEMS (b) terminated or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any amended on terms and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be conditions satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingLender.
Appears in 1 contract
Samples: Credit Agreement (Medplus Inc /Oh/)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, 7.1 and SECTION 5.27.2 (as applicable), Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including Borrowing, and Administrative Agent will not be obligated to issue any Competitive Borrowing)LC, unless as the case may be, UNLESS on the date of such Borrowing or issuance (and after giving effect thereto): ), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or Notice of Competitive Borrowing a LC Request (TOGETHER WITH the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received received, as applicable, the Competitive Bid LC fees as provided for in SECTION 4.3 5.5 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersDocuments); (d) no change in the financial condition or business of Communications and its Restricted Subsidiaries, any Consolidated Company Company, or any other Guarantor which is could reasonably be expected to be a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated Distribution to the extent permitted by ITEMS (b) or (c) of the definition of Permitted AcquisitionSECTION 9.20, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projectionsand projections as Administrative Agent may reasonably request; (h) Administrative Agent shall have received, as requested, evidence that the Debt to be incurred as a result of such Borrowing has been incurred or entered into in compliance with the requirements of the Communications Bond Debt, any Exchange Debenture Indenture, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2Certificates of Designation for the Preferred Stock; and (i) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the LC, as the case may be, the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Dobson Communications Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans is subject to the prior satisfaction of the following conditions stated in SECTION 2.3(unless waived pursuant to Section 9.12(a)); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and the initial Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor Delivery of an Officer’s Certificate executed by a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all Responsible Officer of the Borrower in the form of Exhibit N, dated as of the Borrowing Date (a “Borrowing Date Certificate”):
(i) certifying that all representations and warranties of any Consolidated Company set forth in made by each Loan Party under the Loan Papers Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respects. Each condition precedent respects as of such Borrowing Date (unless such representation or warranty relates solely to an earlier date, in this Facility B Agreement is which case it shall have been true and correct in all material respects as of such earlier date); provided, however, that with respect to each System, the Borrower shall only be required to make the Eligibility Representations for such System as of the first Borrowing Date on or after the date such System becomes subject to the transactions contemplated Financing Documents;
(ii) certifying that no Default or Event of Default has occurred and is continuing or will result from the Borrowing of such Loan;
(iii) certifying that the Borrower is in this Facility B Agreement, and time is compliance with Section 6.1 as of the essence most recent Quarterly Date;
(iv) either (x) certifying that no Watched Funds exist or (y) setting forth a true, complete and correct list identifying each Subject Fund that is a Watched Fund and the condition or conditions that resulted in such Subject Fund being a Watched Fund;
(v) either (x) certifying that the Borrower is in compliance with the Borrowing Base Requirement or (y) setting forth details of the Borrower’s non-compliance with the Borrowing Base Requirement;
(vi) certifying that no Material Adverse Effect has occurred and is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect has occurred; and
(vii) certifying to the absence of any Bankruptcy Event with respect to Borrower Member or Vivint Solar Parent; *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission
(b) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and the Advance Model in accordance with Section 2.1(a)(iv) that are subsequently reviewed, accepted and approved by the Administrative Agent.
(c) The conditions precedent set forth in Sections 3.3 and 3.4, respectively, with respect to any new Systems or any new Subject Funds added to the Available Borrowing Base for the purpose of making such Borrowing have been satisfied in all respects as of the Borrowing Date (as determined by the Administrative Agent in its reasonable discretion);
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of each thereof. any Subject Fund that becomes subject to this Agreement on or prior to the prior approval making of Determining Lenderssuch Loan.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, Lenders may fund any Borrowing without and all conditions being satisfiedtaxes, butfees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the extent permitted by LawAgents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Fund identified in the Borrowing Base Certificate, the same Borrower shall not be deemed in compliance with the Borrowing Base Requirement.
(g) After giving effect to such proposed Borrowing, the Interest Reserve Account shall be funded in an amount greater than or equal to the Interest Reserve Required Amount (as defined in the CADA).
(h) The Administrative Agent shall have received a waiver of duly executed funds flow memorandum in form and substance acceptable to the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingAdministrative Agent.
Appears in 1 contract
Samples: Loan Agreement (Vivint Solar, Inc.)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans is subject to the prior satisfaction of the following conditions stated in SECTION 2.3(unless waived pursuant to Section 9.12(a)); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and the initial Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor Delivery of an Officer’s Certificate executed by a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all Responsible Officer of the Borrower in the form of Exhibit N, dated as of the Borrowing Date (a “Borrowing Date Certificate”):
(i) certifying that all representations and warranties of any Consolidated Company set forth in made by each Loan Party under the Loan Papers Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respects. Each condition precedent respects as of such Borrowing Date (unless such representation or warranty relates solely to an earlier date, in this Facility B Agreement is which case it shall have been true and correct in all material respects as of such earlier date); provided, however, that with respect to each System, the Borrower shall only be required to make the Eligibility Representations for such System as of the first Borrowing Date on or after the date such System becomes subject to the transactions contemplated Financing Documents;
(ii) certifying that no Default or Event of Default has occurred and is continuing or will result from the Borrowing of such Loan;
(iii) certifying that the Borrower is in this Facility B Agreement, and time is compliance with Section 6.1 as of the essence most recent Quarterly Date;
(iv) either (x) certifying that no Watched Funds exist or (y) setting forth a true, complete and correct list identifying each Subject Fund that is a Watched Fund and the condition or conditions that resulted in such Subject Fund being a Watched Fund;
(v) either (x) certifying that the Borrower is in compliance with the Borrowing Base Requirement or (y) setting forth details of the Borrower’s non-compliance with the Borrowing Base Requirement;
(vi) certifying that no Material Adverse Effect has occurred and is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect has occurred; and
(vii) certifying to the absence of any Bankruptcy Event with respect to Borrower Member or Vivint Solar Parent;
(b) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and the Advance Model in accordance with Section 2.1(a)(iv) that are subsequently reviewed, accepted and approved by the Administrative Agent.
(c) The conditions precedent set forth in Sections 3.3 and 3.4, respectively, with respect to any new Systems or any new Subject Funds added to the Available Borrowing Base for the purpose of making such Borrowing have been satisfied in all respects as of the Borrowing Date (as determined by the Administrative Agent in its reasonable discretion);
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of each thereof. any Subject Fund that becomes subject to this Agreement on or prior to the prior approval making of Determining Lenderssuch Loan.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, Lenders may fund any Borrowing without and all conditions being satisfiedtaxes, butfees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the extent permitted by LawAgents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Fund identified in the Borrowing Base Certificate, the same Borrower shall not be deemed in compliance with the Borrowing Base Requirement.
(g) After giving effect to such proposed Borrowing, the Interest Reserve Account shall be funded in an amount greater than or equal to the Interest Reserve Required Amount (as defined in the CADA).
(h) After giving effect to such proposed Borrowing, the Inspected-Only Reserve Account shall be funded in an amount greater than or equal to the Inspected-Only Reserve Required Amount (as defined in the CADA).
(i) The Administrative Agent shall have received a waiver of duly executed funds flow memorandum in form and substance acceptable to the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingAdministrative Agent.
Appears in 1 contract
Samples: Loan Agreement (Vivint Solar, Inc.)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make the Loan on the occasion of a Borrowing after the Original Effective Date shall be subject to the conditions stated in SECTION 2.3precedent that the Original Effective Date, SECTION 5.1, the First Amendment and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless Restatement Effective Date and the Second Amendment and Restatement Effective Date shall have occurred and on the date of such Borrowing (and after giving effect thereto): the Borrowing:
(a) Administrative Agent The following statements shall have timely received therefor a be true (and each of the giving of the Notice of Borrowing or Notice and the acceptance by the Borrower of Competitive the proceeds of the Borrowing as shall constitute a representation and warranty by the case may be; Borrower that on the date of the Borrowing such statements are true):
(bi) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth contained in the Section 4.01 and in each other Loan Papers Document are true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based expressly relate to an earlier date in which case such representations and warranties shall have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent material respects on each earlier date);
(ii) other than the Ontario Litigation, there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(iii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
(b) The Collateral Agent (for the benefit of the Secured Parties) shall have obtained a valid and perfected first priority (other than Permitted Liens) lien on and security interest in this Facility B Agreement is material the Collateral and the Borrower shall have executed or authorized the Collateral Agent to execute, as applicable, and delivered UCC financing statements, and any other financing statements or other registrations or filings under any personal property security legislation of any other jurisdiction as may be reasonably required by the Administrative Agent, to the transactions contemplated Administrative Agent.
(c) The Borrower shall have notified the Lender in this Facility B Agreement, writing as to the proposed Drawdown Date and time is shall have delivered to the Lender a duly executed Notice of Borrowing.
(d) On or prior to the essence Drawdown Date in respect of each thereof. Subject Loan D, the Collateral Account shall contain Collateral with a sufficient aggregate Prevailing Market Value to cause the Actual LTV Ratio (i) with respect to the Loan outstanding prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed borrowing of Loan D to be less than or equal to 60% and (ii) after disbursement of Loan D to be less than or equal to 58.85% (which comprises a waiver weighted average of 60% (in respect of the requirement that each Loan of $50,000,000 prior to drawing of Loan D) and of 55% (in respect of Loan D in an amount of $15,000,000)).
(e) The Lender shall have received the Promissory Note made and duly executed by the Borrower payable to the Lender in the amount of the Loan.
(f) On or prior to the Drawdown Date in respect of Loan D, a sufficient amount of Bitcoin (BTC) at least equal to US$20,000,000 shall be held in the Unsecured Account on such condition precedent Drawdown Date.
(g) The Borrower shall have paid all applicable and documented fees and expenses of the Lender and the Custodian for which invoices have been presented at least two Business Days prior to the applicable Drawdown Date or such later date to which the Borrower and the Lender may agree (including the fees, costs and expenses of legal counsel).
(h) The Lender shall have received such other information, approvals, opinions or documents as the Lender may reasonably request.
(i) No Blocking Event shall be satisfied as a prerequisite for any subsequent fundingcontinuing or would result from the proposed Loan.
(j) The Lender shall have received the results of lien searches with respect to the Borrower, unless Determining Lenders specifically waive each such item in writingresults being satisfactory to the Lender.
Appears in 1 contract
Samples: Credit Agreement (Hut 8 Corp.)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, precedent that the Effective Date shall have occurred and SECTION 5.2, Facility B Lenders will not on the date of each Borrowing:
(a) the following statements shall be obligated to fund true (as opposed to continue or convert) any and each of the giving of the Notice of Borrowing (including any Competitive Borrowing), unless and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 are correct on and as of the date of such Borrowing, before and after giving effect to a specific date or such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date;
(ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have event has occurred and be is continuing; , or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default;
(fiii) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of such Borrowing shall be used solely in accordance with Section 2.10;
(iv) with respect to any Borrowing the Borrowing proceeds of which will be used to finance make a Permitted Acquisition contemplated by ITEMS Payment, a Permitted Payment in the amount of such Borrowing is due within 1 Business Day of the date of such Borrowing;
(v) the Borrower has not made any representation or warranty herein or in connection with this Agreement that shall prove to have been incorrect in any material respect when made; and
(vi) the Borrower has not failed to perform or observe any term, covenant or agreement contained in this Agreement or any other Loan Document on its part to be performed or observed, other than any failure that shall have been remedied;
(b) or the Lender shall have received a duly executed “Statement of Purpose for an Extension of Credit Secured by Margin Stock by a Person Subject to Registration Under Regulation U” on Federal Reserve Form G-3 and a “Statement of Purpose for an Extension of Credit Secured by Margin Stock” on Federal Reserve Form U-1 with respect to such Borrowing, each completed in form and substance satisfactory to Lender; and
(c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same Termination Date shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writinghave occurred.
Appears in 1 contract
Samples: Credit Agreement (Directv Group Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment (or waiver by the Required Lenders) of the following conditions; provided that the conditions stated described in SECTION 2.3, SECTION 5.1, clauses (c) and SECTION 5.2, Facility B Lenders will (d) (other than a Default or Event of Default described in Section 6.01(g)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Delayed Drawdown Collateral Loans or Revolving Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing (including any Competitive Borrowing), unless on fund the date of such Borrowing (and after giving effect thereto): Unfunded Reserve Account to the extent required under Section 8.05:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Lenders and the Administrative Agent shall have received a Notice of Borrowing with respect to such Advance (including the Competitive Bid fees as provided for Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in SECTION 4.3 hereofaccordance with Section 2.02;
(b) immediately after the making of such Advance on the applicable Borrowing Date, the Coverage Test and the Collateral Quality Test shall be satisfied (or, in the case of the Collateral Quality Test, if applicable; the Collateral Quality Test was not satisfied immediately before the making of such Advance, the Collateral Quality Test is maintained or improved) (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing and certified by a Responsible Officer of the Borrower (or the Servicer on behalf of the Borrower));
(c) all each of the representations and warranties of any Consolidated Company set forth the Borrower contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andexpressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lendersmade on such date); ;
(d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Event of Default shall have occurred and be continuingcontinuing at the time of the making of such Advance or shall result upon the making of such Advance; and
(fe) the funding of such Borrowings is permitted by Law; Borrower and the Servicer shall have received written notice from the Administrative Agent (g) in with a copy to the event all or any part Collateral Administrator), evidencing the approval of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS Administrative Agent in its sole discretion, in accordance with clause (b) or (cA) of the definition of Permitted Acquisition“Eligible Loan”, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in relevant Collateral Loans to be added to the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and Collateral; and
(f) above are true after the making of such Advances and correct in all respects. Each condition precedent in this Facility B Agreement the deposit of any portion thereof into the Unfunded Reserve Account, the amount on deposit therein is material at least equal to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingUnfunded Reserve Required Amount.
Appears in 1 contract
Samples: Credit and Security Agreement (Bain Capital Specialty Finance, Inc.)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, precedent that the Effective Date shall have occurred and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing the following statements shall be true (and after each of the giving effect thereto): of the applicable Borrowing Notice and the acceptance by the Borrowers of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrowers that on the date of such Borrowing such statements are true):
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific contained in Section 4.01, the Security Agreement and the Pledge Agreement are correct on and as of the date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in Borrowing, before and after giving effect to such Borrowing and to the event all or any part application of the proceeds therefrom, as though made on and as of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS such date;
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default;
(c) after giving effect to such Borrowing, the aggregate amount of the definition requested Borrowing will not exceed an amount equal to the lesser of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) when added to all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determinationoutstanding Advances, and upon the reasonable request sum of Administrative Agent(A) $30,000,000, Borrower shall deliver to Administrative Agent evidence substantiating any (B) eighty-five (85%) percent of the matters net amount of Eligible Receivables and (C) forty (40%) percent of Eligible Inventory, less, in each case, any Availability Reserves (each of which is measured as of the Loan Papers which are necessary to enable Borrower to qualify for end of the fourth Business Day immediately preceeding such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (fii) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material when added to the transactions contemplated in this Facility B Agreementoutstanding Advances made during the calendar month during which such Borrowing is made, and time is will not exceed 110% of the essence aggregate projected cash requirements of MEMC for such month as set forth on the applicable Monthly Projected Cash Flow Statement;
(d) all expenditures to be paid from proceeds of the applicable Borrowing are reasonable and necessary for the conduct of the business of the Borrower; and
(e) in respect the reasonable judgment of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by LawBorrower, the same shall not be deemed amount of such Borrowing is reasonably necessary for the Borrower to be a waiver meet its liquidity requirements for the next ten (10) Business Days immediately following the date of such Borrowing (taking into account the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingliquidity needs of its Subsidiaries).
Appears in 1 contract
Samples: Revolving Credit Agreement (Memc Electronic Materials Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make an Advance shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): following conditions:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the The representations and warranties of any Consolidated Company set forth contained in the Loan Papers Section 4.01 are true true, accurate and correct in all material respects on and as of the date of the Borrowing (except to the extent that (i) the for those representations and warranties speak expressly referring to a specific date or (ii) the facts on another date, which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers andshall be true, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true accurate and correct in all respects. Each condition precedent in this Facility B Agreement is material respects as of such date), before and after giving effect to the transactions contemplated Borrowing and to the application of the proceeds there from, as though made on and as of such date;
(b) No Default or Events of Default exist hereunder;
(c) The Borrower shall have delivered the Notice of Borrowing in accordance with the terms of Section 2.02 hereof;
(d) The Lender shall have received a Promissory Note payable to the order of the Lender for the amount of the borrowing;
(e) The Lender shall have received a duly executed Compliance Certificate from the Borrower relating to compliance with the Financial Covenants set forth in Section 4.05 this Facility B Agreement;
(f) No material adverse change in or material disruption of conditions in the financial, banking or capital markets, which in the reasonable discretion of the Lender materially affects the Borrower, shall have occurred;
(g) The Lenders shall have a valid and perfected first-priority security interest in the Collateral, subject to Permitted Liens;
(h) Notwithstanding Section 3.02 (g), the Borrower may request an Advance for the first US $500,000 from the Advance Amount, even if the Lender does not have a first-priority security interest in the real estate mortgaged through the Mortgage Agreement and a first priority security interest in the deposit account subject to the Deposit Account Control Agreement, if the Borrower is in compliance with the other Conditions Precedent and time is all other terms and conditions of this Agreement, but the Borrower may not request any additional Advances and the Lender shall be under no obligation to make any additional Advances until the Mortgage Agreement shall have been filed, the Borrower shall have complied with the covenant set forth in Section 4.02(l), the Lender shall have a first priority security interest in the real estate mortgaged through the Mortgage Agreement and the Deposit Account Control Agreement shall have been executed;
(i) The ratio of Borrower’s Total Assets to Accreted Principal Amount shall exceed 1.75 to 1.0 and its ratio of Current Assets to Accreted Principal Amount shall exceed 1.0 to 1.0; and
(j) Signet Healthcare Partners, G.P. shall own and control, in the aggregate, at least 35% of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver outstanding voting rights of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingBorrower and the outstanding common stock of the Borrower, unless Determining Lenders specifically waive each such item in writingand shall have at least one of its employees on the Board of Directors of the Borrower.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make Term Loans on each Credit Date (including the Closing Date) is subject to the satisfaction (or waiver) of the following further conditions stated precedent:
(1) With respect to any Term Loan (other than the Interim Order Term Loan) that is made after the Closing Date, the Final DIP Financing Order shall have been entered by the Bankruptcy Court, each such order shall be in SECTION 2.3form and substance satisfactory to the Required Lenders (and with respect to any provisions that affect the rights or duties of the Administrative Agent, SECTION 5.1the Administrative Agent) in their sole discretion and such order shall be in full force and effect and shall not have been reversed, modified, amended, stayed or vacated absent the prior written consent of the Required Lenders (and with respect to amendments, modifications or supplements that affect the rights or duties of the Administrative Agent, the Administrative Agent).
(2) The Borrower shall have delivered to the Administrative Agent a duly executed and completed Borrowing Request in accordance with Section 2.02.
(3) The Collateral Agent, for the benefit of the Secured Parties, shall have valid and perfected Liens on all Collateral, to the extent contemplated hereby (including, but not limited to, as contemplated by Schedule 1.01(3)), and SECTION 5.2pursuant to the other Loan Documents, Facility B Lenders will not including the applicable DIP Financing Order.
(4) The Loan Parties shall be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing)in compliance in all material respects with the Interim DIP Financing Order and the Final DIP Financing Order, unless on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; .
(b5) Administrative Agent The making of such Term Loan shall not violate any material applicable requirement of law and shall not be enjoined, temporarily, preliminarily or permanently.
(6) The Loan Parties shall be in compliance in all material respects with each First Day Order and Second Day Order then in effect.
(7) There shall not have received occurred a Material Adverse Effect since the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; Closing Date.
(c) all of the 8) The representations and warranties of any Consolidated Company set forth in the Loan Papers Parties contained in Article III or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on unless otherwise qualified by materiality in which case such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also shall be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material ) on and as of the Credit Date, both before and immediately after giving effect to the transactions contemplated in this Facility B Agreement, and time is making of the essence in respect Term Loan on such Credit Date and the application of each thereof. Subject to the prior approval of Determining Lendersproceeds therefrom, Lenders may fund any Borrowing without all conditions being satisfied, but, as though made on such date; provided that to the extent permitted that such representations and warranties specifically refer to an earlier date, then such representations and warranties shall be true and correct in all material respects (unless otherwise qualified by Lawmateriality in which case such representations and warranties shall be true and correct in all respects) as of such earlier date; provided, further, any representations and warranties of the Loan Parties in any Loan Document that refer to any schedule, exhibit or similar annex shall be in each case subject to Schedule 1.01(3).
(9) As of the applicable Credit Date, (i) no Default or Event of Default shall exist or would result from the making of such Term Loan and the application of proceeds therefrom and (ii) the Borrowers shall be in pro forma compliance with the covenant set forth in Section 6.14.
(10) The Administrative Agent shall have received a certificate, dated as of applicable Credit Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 4.02.
(11) The Borrower shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees and expenses then earned, due and payable under the Loan Documents (including, without limitation, the same fees and expenses of the Lender Advisors required to be paid hereunder and under Section 14.01 of the RSA). For the avoidance of doubt, all prepetition fees of the Lender Advisors shall not be paid in full pursuant to the terms of the RSA.
(12) Each Borrowing shall be deemed to be constitute a waiver representation and warranty by the Borrower on the date of such Borrowing, issuance, amendment, extension or renewal as applicable, as to the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item matters specified in writingthis Section 4.02.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 2.3, SECTION 5.1, 7.1 and SECTION 5.27.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): ):
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may beBorrowing; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining LendersPapers); (dc) no change in the financial condition or business of any Consolidated Company or any Guarantor which is could be a Material Adverse Event shall have occurred; (ed) no Default or Potential Default shall have occurred and be continuing; (fe) the funding of such Borrowings is permitted by Law; (gf) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated Distribution to the extent permitted by ITEMS (b) or (c) of the definition of Permitted AcquisitionSECTION 9.21, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together withsuch certifications, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2projections as Administrative Agent may reasonably request; and (ig) all matters related to such Borrowing must be satisfactory to Determining Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Required Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent fundingfunding or issuance, unless Determining Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Samples: 364 Day Revolving Credit and Term Loan Agreement (Dobson Communications Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 2.3, SECTION 5.1, precedent that the Effective Date shall have occurred and SECTION 5.2, Facility B Lenders will not on the date of such Borrowing:
(a) The following statements shall be obligated to fund true (as opposed to continue or convert) and each of the giving of the applicable Notice of Borrowing and the acceptance by any Borrower of the proceeds of such Borrowing (including any Competitive Borrowing), unless shall constitute a representation and warranty by such Borrower that on the date of such Borrowing (and after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 (except the representation set forth in the last sentence of subsection (e) thereof) and, in the case of any Borrowing made to a specific date or Designated Subsidiary, in the Designation Agreement for such Designated Subsidiary, are correct on and as of such date, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the facts on which such representations application of the proceeds therefrom, that constitutes a Default,
(iii) all governmental and warranties are based third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been changed obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, all applicable waiting periods in connection with the Acquisition shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the reasonable judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated or permitted by hereby, and
(iv) all conditions precedent to the Loan Papers andconsummation of the Acquisition (other than the payment of cash consideration from, if applicableamong other sources, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the initial Borrowing will be used hereunder) shall have been satisfied substantially in accordance with the terms of the Stock and Asset Purchase Agreement dated as of October 1, 2004 between UCB SA and the Company, as amended though February 8, 2005, without any waiver or amendment not consented to finance a Permitted Acquisition contemplated by ITEMS the Required Lenders of any material term, provision or condition set forth therein, and in compliance with all applicable laws.
(b) or The Company's Public Debt Rating shall be not lower than BBB- from S&P and not lower than Baa3 from Moody's.
(c) of the definition of Permitted Acquisition, Administrative The Agent shall have timely received certified on or before the daxx xx xuch Borrowing, in form and substance satisfactory to the Agent and in sufficient copies for each Lender, copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all audited financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any statements of the matters Surface Specialties business of UCB SA as at December 31, 2003 prepared in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative accordance with generally accepted accounting principles in Belgium; and
(d) The Agent shall constitute have received such other approvals, opinions or documents as any Lender through the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Samples: 364 Day Term Loan Agreement (Cytec Industries Inc/De/)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing (including the initial Borrowing) shall be subject to the conditions stated in SECTION 2.3precedent that, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), unless on the date of such Borrowing (and after giving effect thereto): Advance:
(a) Administrative Agent the following statements shall have timely received therefor a be true and correct (and the giving of the applicable Notice of Borrowing or Notice of Competitive Borrowing as and the case may be; (b) Administrative Agent shall have received acceptance by the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all Borrower of the representations proceeds of such Borrowing shall constitute a representation and warranties warranty by the Parent that, on the date of any Consolidated Company set forth in the Loan Papers such Borrowing, such statements are true and correct in all material respects (except to the extent that correct):
(i) the representations and warranties speak to a specific contained in Section 4.01 are true and correct on and as of the date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in Borrowing, before and after giving effect to the event all or any part application of the proceeds of any Borrowing made in connection therewith as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the application of any Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS made in connection therewith that constitutes an Event of Default or an Unmatured Default;
(b) the Agent shall have received such other approvals, opinions, or documents as the Agent, or the Majority Lenders through the Agent, may reasonably request, and such approvals, opinions, and documents shall be satisfactory in form and substance to the Agent;
(c) the Arranger shall not have presented to Parent, the Borrower or any of their respective Subsidiaries a then available alternative debt financing (other than a debt financing to either of the definition Utilities) the terms of Permitted Acquisitionwhich are reasonable and prudent and the proceeds of which would be available for the purposes to which the proceeds of such Advances then requested to be made would otherwise be put; and
(d) the trading level, Administrative Agent for the ten trading sessions preceding the date of such Borrowing, of the AER Notes (which shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required be determined by the Loan Papers in connection Agent taking an average trading spread from the Quoting Dealers) shall not have been greater than 650 basis points above the yield on the relevant U.S. Treasury security with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related final maturity comparable to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any that of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingAER Notes.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated (unless waived in SECTION 2.3writing by the Lenders in their sole and absolute discretion); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and a Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the All representations and warranties of any Consolidated Company set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects as of such Borrowing Date (except unless such representation or warranty relates solely to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on an earlier date, in which such representations and warranties are based case it shall have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Sizing Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Facility B Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated in this Facility B Agents and the Lenders.
(f) No Material Adverse Effect has occurred or is continuing since the Closing Date. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(g) Each Current Project shall be a Project subject to the Master Lease, and if any Current Project is a Commercial Project, then the commercial Host Customer met the Minimum Commercial Credit Standard as of the closing date of the applicable Lease Tranche under the Master Lease for such Current Project.
(h) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document, (ii) each Customer Agreement, (iii) [***] and time is (iii) the Closing Certificate, in each case with respect to a Current Project, duly executed and delivered by each party thereto and in form and substance satisfactory to the Lenders.
(i) With respect to the final Borrowing, the Administrative Agent shall have received copies of the essence True-Up Reports delivered by Borrower to, and accepted by, Lessee [***] with respect to any Current Project or Funded Project.
(j) [***]
(k) To the extent the Master Lease is amended, or waived to permit, [***] terms as described in respect clause (D) of each thereof. Subject the first proviso in Section 6.11(a), no Current Project for a Residential Project has a Customer Agreement with [***] terms or is with a Host Customer with a FICO® score of [***].
(l) To the extent not previously delivered to the prior approval of Determining LendersAdministrative Agent, Lenders may fund any Borrowing without all conditions being satisfied, but, delivery to the extent permitted by LawAdministrative Agent of true, correct and complete copies of all insurance certificates with respect to the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCurrent Project evidencing [***].
Appears in 1 contract
Samples: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the conditions stated in SECTION 2.3, SECTION 5.1, and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convertterms of this Agreement) on the occasion of any Borrowing (including any Competitive the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in Article VII are correct on and as of the date of such Borrowing, upon giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), unless (A) no Floor Plan Event of Default exists with respect to the Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (other than a Request for Borrowing taking the form of a Draft) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereofto such Borrowing, if applicable; (c) all of the representations and warranties of any Consolidated Company set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) if such Borrowing is an Acquisition Loan Borrowing, the facts on which aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such representations Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and warranties are based have been changed by transactions contemplated or permitted (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the Loan Papers relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred;
(e) no Default or Potential Default shall have occurred and be continuing; party (f) other than the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits theretothe Floor Plan Agent or a Lender) executed by to any Consolidated Company Intercreditor Agreement has disputed or contested the contractual subordination provision thereof in connection with such Permitted Acquisitionwhole or in part or has otherwise breached its material obligations thereunder which dispute, accompanied by all financial information, projectionscontest or breach involves $1,000,000 or more in collateral, and certifications required by such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related Agent or the Floor Plan Agent to such Borrowing must be satisfactory to Determining Lenders other party and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Determining Lenders, Lenders may fund any Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingCompany.
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Samples: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Committed Lender to make any Loans is subject to the prior satisfaction of the following conditions stated in SECTION 2.3(unless waived pursuant to Section 9.14(a)); provided, SECTION 5.1however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 5.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any 3.2 if the Closing Date and a Borrowing (including any Competitive Borrowing), unless Date occur on the date of such Borrowing (and after giving effect thereto): same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the All representations and warranties of any Consolidated Company set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (d) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (e) no Default or Potential Default shall have occurred and be continuing; (f) the funding of such Borrowings is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (i) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are be true and correct in all respects. Each condition precedent respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in this Facility B Agreement which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is material continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the transactions Administrative Agent and each Group Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Aggregate Advance Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in this Facility B Agreement, and time is favor of the essence Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of each thereof. Borrower’s Equity Interest in the Managing Member(s) of any Subject Fund.
(e) All amounts for which reasonably detailed invoices have been received at least one (1) Business Day prior to the prior approval applicable Borrowing Date and that are required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of Determining Lendersthe documents and instruments required to be filed as a condition precedent to Section Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
3.1 and this Section 3.2, Lenders may fund shall have been paid in full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the Agents and the Group Agents.
(f) After giving effect to such proposed Borrowing and any Watched Fund identified in the Borrowing without all conditions being satisfiedBase Certificate, butthe Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the extent permitted by LawBorrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(i) No Sweep Event has occurred and is continuing and (ii) solely for purposes of determining whether the same amount of the requested Borrowing would cause the Outstanding Principal (including the amounts of the requested Borrowing) to exceed the Available Borrowing Base, each Subject Fund in respect of which a Subject Fund Sweep Event has occurred and is continuing shall not be deemed to be a waiver have an Advance Rate of 0%, and the Borrowing Notice, Borrowing Base Certificate and Aggregate Advance Model delivered by the Borrower pursuant to Section 3.2(c) shall reflect such Advance Rate of 0%.
(i) [Reserved.]
(j) No Bankruptcy Event shall have occurred with respect to SolarCity.
(k) The conditions precedent set forth in Section 3.3 with respect to any Current Systems have been satisfied in all respects as of the requirement that each Borrowing Date.
(l) All Accounts shall be funded in the amounts then required in accordance with the terms of the CADA.
(m) Other than with respect to the initial Borrowing, the Borrower shall have entered into all Interest Rate Protection Agreements required to have been entered into on such condition precedent be satisfied as a prerequisite for any subsequent funding, unless Determining Lenders specifically waive each such item in writingBorrowing Date under Section 2.13.
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