Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions: (a) The representations and warranties of the Obligors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date. (b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing. (c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03. (d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing. (e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.
Appears in 4 contracts
Samples: 364 Day Senior Bridge Loan Agreement (Covidien Ltd.), 364 Day Senior Bridge Loan Agreement (Tyco International LTD /Ber/), 364 Day Senior Bridge Loan Agreement (Tyco International LTD /Ber/)
Each Borrowing. The obligation funding by the Lenders of each Lender Borrowing (including the Borrowing to make a Loan be requested on the occasion of any Borrowing Closing Date) is additionally subject to the satisfaction of the following conditions:
(a) The the Administrative Agent shall have received a written Borrowing Request in accordance with the requirements of Section 2.03(a), with a copy to the Initial Lender (solely to the extent the Initial Lender is a Lender at the time of such Borrowing);
(b) the representations and warranties of the Obligors Credit Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or and in any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Document shall be true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date of such BorrowingBorrowing (or, before and after giving effect to such Borrowing, or if in the case of any such representation or warranty was expressly stated to have been made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such specific date.);
(bc) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a continuing or would result from such Borrowing Request in accordance with Section 2.03.or from the application of proceeds thereof;
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with on the proceeds date of the funding of such Borrowing (other than pursuant to a Special Repaymentand after giving pro forma effect thereto and the pledge of any Additional Collateral), the Administrative Agent Collateral Coverage Ratio shall not be less than 2.0 to 1.0 as evidenced by a certificate of a Responsible Officer of the Parent;
(e) [reserved];
(f) the Initial Lender shall have received satisfactory evidence reasonably satisfactory to it that (x) each Material Loyalty Program Agreement has and (y) Loyalty Program Agreements representing 90% of Loyalty Program Revenues (excluding revenues generated under any Loyalty Subscription Program) in the conditions aggregate over the immediately preceding twelve (12) calendar month period then ended have, in each case, an expiration date that is at least six (6) months after the Maturity Date (without giving effect to the tender offers commenced for proviso in the repurchase or redemption definition thereof);
(g) on the date of such Allocated Existing Indenture Debt shall have been satisfied Borrowing, the opinion of the independent public accountants (after giving effect to any reissuance or revision of such opinion) on the most recent audited consolidated financial statements delivered by the Parent pursuant to the terms of the Repurchase Documentation, Section 5.01(a) shall not include a “going concern” qualification under GAAP as in such form as provided to the Administrative Agent effect on or before the date of this Agreement or, if there is a change in the relevant provisions of GAAP thereafter, any like qualification or exception under GAAP after giving effect to such change; and
(and with such subsequent amendments, modifications h) on or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable prior to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds date of such Borrowing.
(e) With , each Credit Party shall have satisfied the Perfection Requirement with respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionCollateral. Each Borrowing Request by the Borrower hereunder and each Borrowing shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date and as of such Borrowing Request and the date of the applicable Borrowing requested thereunder as to the matters specified in paragraphs clauses (ab) and (bc) of above in this Section.
Appears in 3 contracts
Samples: Loan and Guarantee Agreement (Frontier Group Holdings, Inc.), Loan and Guarantee Agreement, Loan and Guarantee Agreement
Each Borrowing. The obligation of each Lender the Banks to make a each Loan on the occasion of any Borrowing hereunder is subject at the time of such Loan to the satisfaction of the following additional conditions:
(a) The receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2;
(b) the fact that, immediately before and after such Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Obligors set forth Credit Parties contained in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before Borrowing (other than representations and after giving effect warranties that relate to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was which shall be true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.); and
(d) With with respect to the transactions contemplated by this Agreement, each Credit Party shall have obtained any Allocated Existing Indenture Debt necessary consents, waivers, approvals, authorizations, registrations, filings, licenses and notifications (including, if necessary, qualifying to do business in, and qualifying under the applicable consumer laws of, each jurisdiction where the applicable party is then doing business, or is in the process of obtaining such qualification in each jurisdiction where the applicable party is expected to be repaid or redeemed with doing business utilizing the proceeds of such Borrowing (other than pursuant to a Special Repayment), Loan) and the Administrative Agent same shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full force and effect, except where the failure to obtain such consent, qualification or are being paid in full in cash through other item could not reasonably be expected to have a direct disbursement of material adverse effect on the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make Borrower and its Subsidiaries, taken as a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionwhole. Each Borrowing Request hereunder shall be deemed to constitute be a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters facts specified in paragraphs clauses (a) b), (c), and (bd) of this Section. No Bank shall have any obligation to make a Loan hereunder at any time unless all conditions precedent have been satisfied before or at such time. The conditions precedent are included for the exclusive benefit of the Administrative Agent and the Banks. In the event that any one more Banks makes available its Loan at the request of the Borrower notwithstanding that any one or more of the conditions precedent thereto have not been satisfied in whole or in part, such waiver shall not operate to waive the right of the Administrative Agent and the Banks to require strict compliance thereafter.
Appears in 2 contracts
Samples: Term Loan Agreement, Term Loan Agreement (Alliance Data Systems Corp)
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the occurrence of the Effective Date and the satisfaction of the following conditions:
(a) The representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) on and as of the date of such Borrowing, before except to the extent that such representations and after giving effect warranties specifically refer to such Borrowing, or if any such representation or warranty was made as of a specific an earlier date, such representation and warranty was in which case they shall be true and correct in all material respects on (provided that any representation or warranty that is qualified by materiality or Material Adverse Effect shall be true and correct in all respects) as of such earlier date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(c) The Borrower Administrative Agent shall have delivered received a Borrowing Request in accordance with Section 2.03Request.
(d) With respect to In connection with a Borrowing of Revolving Loans in an Agreed Currency, there shall not have occurred any Allocated Existing Indenture Debt change in national or international financial, political or economic conditions or currency exchange rates or exchange controls that would make it impracticable for such credit extension to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, denominated in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such BorrowingAgreed Currency.
(e) With respect If the applicable Borrower is a Designated Subsidiary Borrower, then the conditions of Section 2.24 to any Borrowing the proceeds designation of which are being utilized such Borrower as a Designated Subsidiary Borrower shall have been met to make a Special Repayment, the satisfaction of the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionAgent. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Lead Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a) and through (be) of this Section.
Appears in 2 contracts
Samples: Credit Agreement (ESAB Corp), Credit Agreement (ESAB Corp)
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all respects (or, in the case of any representation or warranty that is not qualified as to materiality, in all material respects respects) on and as of the date of such BorrowingBorrowing (or, before and after giving effect to such Borrowing, or if in the case of any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects that expressly relates to an earlier date, on and as of such earlier date).
(b) At the time of and immediately after giving effect to such Borrowing, Borrowing no Default shall have occurred and be continuing.
(c) The At the time of and immediately after giving effect to such Borrowing, the Supply Agreement shall be in full force and effect, no payment default shall have occurred and be continuing and no other default that (with or without notice or the passage of time or both) would permit Lucent to terminate the Supply Agreement and with respect to which Lucent has notified the Borrower shall have delivered a Borrowing Request in accordance with Section 2.03occurred and be continuing under the Supply Agreement.
(d) With respect to any Allocated Existing Indenture Debt Tranche 2 Loans, at the time of and immediately after giving effect to such Borrowing, the aggregate amount of all Tranche 2 Loans outstanding shall be equal to or less than [ * ] of the aggregate amount of paid in capital and Subordinated Indebtedness in excess of $[ * ].
(e) The Lucent Product of which the Purchase Price is to be repaid or redeemed paid with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not is intended to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid used in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionPermitted Jurisdiction. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a), (b), (c), (d) and (be) of this Section. For purposes of this Section 4.02, the condition set forth in Section 4.02(a), to the extent that it relates to the representation of the Parent and the Borrower that no default (excluding payment defaults) that (with or without notice or the passage of time or both) would permit Lucent to terminate the Supply Agreement has occurred and is continuing, shall not be deemed unsatisfied at the time of any Borrowing unless Lucent has notified the Borrower that such a default has occurred.
Appears in 2 contracts
Samples: Credit Agreement (Jato Communications Corp), Credit Agreement (Jato Communications Corp)
Each Borrowing. The obligation of each Lender the Banks to make a each Loan on the occasion of any Borrowing hereunder is subject at the time of such Loan to the satisfaction of the following additional conditions:
(a) The receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2;
(b) the fact that, immediately before and after such Borrowing, no Default shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Obligors set forth Credit Parties contained in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before Borrowing (other than representations and after giving effect warranties that relate to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was which shall be true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.); and
(d) With with respect to the transactions contemplated by this Agreement, each Credit Party shall have obtained any Allocated Existing Indenture Debt necessary consents, waivers, approvals, authorizations, registrations, filings, licenses and notifications (including, if necessary, qualifying to do business in, and qualifying under the applicable consumer laws of, each jurisdiction where the applicable party is then doing business, or is in the process of obtaining such qualification in each jurisdiction where the applicable party is expected to be repaid or redeemed with doing business utilizing the proceeds of such Borrowing (other than pursuant to a Special Repayment), Loan) and the Administrative Agent same shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full force and effect, except where the failure to obtain such consent, qualification or are being paid in full in cash through other item could not reasonably be expected to have a direct disbursement of material adverse effect on the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make Borrower and its Subsidiaries, taken as a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionwhole. Each Borrowing Request hereunder shall be deemed to constitute be a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters facts specified in paragraphs clauses (a) b), (c), and (bd) of this Section. No Bank shall have any obligation to make a Loan hereunder at any time unless all conditions precedent have been satisfied before or at such time. The conditions precedent are included for the exclusive benefit of the Administrative Agent and the Banks. In the event that any one more Banks makes available its Loan at the request of the Borrower notwithstanding that any one or more of the conditions precedent thereto have not been satisfied in whole or in part, such waiver shall not operate as to waive the right of the Administrative Agent and the Banks to require strict compliance thereafter.
Appears in 2 contracts
Samples: Credit Agreement (Alliance Data Systems Corp), Credit Agreement (Alliance Data Systems Corp)
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower At the time of and immediately after giving effect to such Borrowing, (i) the aggregate principal amount of all Loans (excluding up to $30,000,000 of Loans made to finance the Permitted Third Party Payments described in clause (a) of the definition of "Permitted Third Party Payments") made hereunder (whether or not repaid) shall have delivered not exceed [*] of the sum of the aggregate Purchase Price payments made to Lucent at or prior to such time, (ii) the ratio of Total Indebtedness to Total Contributed Capital shall not exceed 2.0 to 1.0 and (iii) the aggregate principal amount of all Eligible Secured Debt described in clauses (a), (b) and (c) of the definition of "Eligible Secured Debt" that has been incurred (on a Borrowing Request in accordance with Section 2.03cumulative basis, whether or not such Eligible Secured Debt remains outstanding) shall not exceed $1,200,000,000.
(d) With respect In the case of a Borrowing to finance the Purchase Price of any Allocated Existing Indenture Debt to be repaid or redeemed with assets, a License Subsidiary shall have a valid FCC License for the proceeds of such Borrowing geographic [*] Certain material (other than indicated by an asterisk) has been omitted from this document pursuant to a Special Repayment), request for confidential treatment. The omitted material has been filed separately with the Administrative Agent shall have received evidence reasonably satisfactory Securities and Exchange Commission. 73 67 market in which such assets are to it be installed or operated; provided that the conditions condition set forth in this paragraph (d) shall not apply with respect to Borrowings to finance the tender offers commenced for the repurchase or redemption Purchase Price of such Allocated Existing Indenture Debt shall have been satisfied pursuant assets that are being resold to the terms ChaseTel prior to consummation of the Repurchase Documentation, ChaseTel Acquisition in such form as provided to the Administrative Agent on or before the date of this Agreement (and accordance with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayedSection 6.04(c)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a), (b), (c) and (bd) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender the Lenders to make a Loan an Advance on the occasion of any Borrowing is subject to the satisfaction of the following conditionsconditions on and as of the date of such Borrowing:
(a) The representations and warranties of each Borrower Party and the Obligors Equityholder set forth in Article III the Credit Documents and of this the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such datecorrect.
(b) The covenants of each Borrower Party and the Equityholder set forth in the Credit Documents and of the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement shall not have been breached.
(c) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(cd) The Borrower Administrative Agent shall have delivered received an Approval Request (if applicable) and a Borrowing Request as set forth in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid 2.03 and such other documents and certificates as the Administrative Agent or redeemed with its counsel may reasonably request, and the Administrative Agent shall have approved such Approval Request if the proceeds of such Borrowing (other than pursuant are intended to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowingpurchase Warehouse Assets.
(e) With respect Each Warehouse Asset to be acquired by the Borrower (or any Borrowing Borrower Party) satisfies the proceeds Eligibility Criteria and the Concentration Limits as of which are being utilized to make a Special Repaymentthe trade date of the related Warehouse Asset.
(f) Each Equity Contribution has been made in accordance with Section 2.09(b)(ii), and 100% of the Administrative Agent cash that the Borrower has received from Equity Contributions shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is been (x) due and payableapplied to purchase Warehouse Assets, (y) permitted to be prepaid deposited into the Reserve Account and applied as set forth in Section 2.03(b) or (z) being irrevocably called for redemption in the case of Equity Contributions other than the initial Equity Contribution, applied as otherwise permitted by Section 2.07(a) or Section 2.09(b)(i).
(g) For the avoidance of doubt, the Commitment Termination Date shall not have occurred.
(h) All terms and conditions of each Sale Agreement required to be satisfied in connection with the assignment of each Warehouse Asset on such Borrowingdate, including, the perfection of the applicable Borrower Party’s interests therein, shall have been satisfied in full, and is being paid all filings (including, UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in cash (i) through a direct disbursement any jurisdiction to give the Collateral Agent, for the benefit of the proceeds of Secured Parties, a first priority perfected security interest in the Collateral, including such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of Warehouse Asset and the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionthereof shall have been made, taken or performed. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower and the Equityholder on the date of such Borrowing Request and thereof as to (x) in the date case of the Borrowing requested thereunder as to Borrower, the matters specified in paragraphs this Section 5.02 and (y) in the case of the Equityholder, the matters specified in clauses (a) and (b) of this SectionSection 5.02.
Appears in 1 contract
Each Borrowing. The obligation of each any Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction on such date of the following conditions:conditions (except to the extent any of the following conditions are waived in accordance with Section 9.02 hereof):
(a) The Administrative Borrower shall have delivered to the Administrative Agent a Borrowing Base Certificate at least ten (10) Business Days prior to the requested date of any Borrowing presenting its computation of the Borrowing Base Loan Amount (on a pro forma basis) as of the date of, and after giving effect to, such Borrowing, together with all supporting documentation required by the Administrative Agent, and the Administrative Agent shall have approved the calculations set forth in such Borrowing Base Certificate;
(b) The conditions set forth in Section 4.01 hereof shall have been satisfied or waived as provided therein;
(c) If any Interest Rate Protection Agreement is required to be in effect pursuant to Section 2.20(a) hereof, then the Borrowers shall have taken all action required to be taken to cause an Interest Rate Protection Agreement to be in full force and effect which will satisfy all of the conditions set forth in Section 2.20(a) hereof after giving effect to such Borrowing;
(d) The Administrative Agent and the Lenders shall have received all fees and other amounts due and payable, on or prior to such Borrowing including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by any of the Credit Parties hereunder;
(e) The representations and warranties of the Obligors Credit Parties set forth in Article III of this Agreement (and the other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Financing Documents shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if ; provided that any such representation or warranty was representations and warranties that by their express terms are made as of a specific date, such representation and warranty was date shall be true and correct in all material respects on and as of such specific date.;
(bi) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing and the Borrowers shall otherwise be in compliance with the provisions of Section 2.01 hereof; and (ii) no Default or Event of Default shall have occurred during the then current calendar quarter or in the two (2) calendar quarters immediately preceding such then current calendar quarter;
(g) No event shall have occurred and be continuing., or would result from such extension of credit, which has had or would have a Material Adverse Effect;
(ch) No such Borrowing would result in the Availability being less than zero dollars ($0) or would result in the Working Capital Availability being less than zero dollars ($0) (it being acknowledged that all calculations of Availability and Working Capital Availability shall be made as of such date after giving effect to such events);
(i) The Borrower Administrative Agent shall have delivered received a Borrowing Request in accordance certificate signed by the Financial Officer of the Administrative Borrower as to the compliance with Section 2.03.clauses (e) through (h) above;
(dj) With The Administrative Agent shall have received a solvency certificate, in form and substance satisfactory to the Administrative Agent, signed by the Financial Officer of each Borrower and each Guarantor attesting to the matters set forth in Section 3.17 hereof;
(k) if such Borrowing is to be an Acquisition Loan, then the conditions set forth in Section 4.03 hereof shall have been satisfied or waived as provided therein with respect to any Allocated Existing Indenture Debt to be repaid or redeemed the Property being acquired with the proceeds of such Loan; and
(l) (i) if such Borrowing (other than pursuant is to be a Special Repayment)Working Capital Loan, then the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption amount of such Allocated Existing Indenture Debt Borrowing shall be not less than $500,000, and no Working Capital Loan shall have been satisfied pursuant to made in the terms of three (3) month period ending on the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the proposed date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (yii) permitted if such Borrowing is to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowingan Acquisition Loan, and is being paid in cash (i) through a direct disbursement of then the proceeds amount of such Borrowing or shall be not less than $1,000,000 and (iiiii) with money irrevocably deposited with if such Borrowing is neither a Working Capital Loan nor an Acquisition Loan, then the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds amount of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionBorrowing shall be not less than $500,000. Each Borrowing Request shall be deemed to constitute a representation and warranty by each of the Obligors Credit Parties on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (aSections 4.02(e) and (bf) of this Sectionhereof.
Appears in 1 contract
Samples: Credit Agreement (Cornerstone Core Properties REIT, Inc.)
Each Borrowing. The obligation of each Lender the Banks to make a each Loan on the occasion hereunder and of any Borrowing Letter of Credit Issuer to issue or amend each Letter of Credit is subject at the time of such Loan or issuance or amendment of such Letter of Credit to the satisfaction of the following conditions:
(a) The the satisfaction of the conditions set forth in Section 3.1;
(b) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2;
(c) the fact that, immediately after any Borrowing of Loans, the aggregate amount of all Loans made hereunder plus the Letter of Credit Outstandings will not exceed the Total Commitments in effect;
(d) the fact that, immediately before and after such Borrowing, no Default shall have occurred and be continuing;
(e) the fact that the representations and warranties of the Obligors set forth Credit Parties contained in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before Borrowing (other than representations and after giving effect warranties that relate to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was which shall be true and correct in all material respects on and as of such date.); and
(bf) At with respect to the time of and immediately after giving effect to such Borrowingtransactions contemplated by the Credit Agreement, no Default each Credit Party shall have occurred obtained any necessary consents, waivers, approvals, authorizations, registrations, filings, licenses and be continuing.
notifications (c) The Borrower shall have delivered a Borrowing Request including, if necessary, qualifying to do business in, and qualifying under the applicable consumer laws of, each jurisdiction where the applicable party is then doing business, or is in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt the process of obtaining such qualification in each jurisdiction where the applicable party is expected to be repaid or redeemed with doing business utilizing the proceeds of such Borrowing (other than pursuant to a Special Repayment), Loan) and the Administrative Agent same shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full force and effect, except where the failure to obtain such consent, qualification or are being paid in full in cash through other item could not reasonably be expected to have a direct disbursement of material adverse effect on the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make Borrower and its Subsidiaries, taken as a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionwhole. Each Borrowing Request hereunder shall be deemed to constitute be a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters facts specified in paragraphs clauses (ac), (d), (e) and (bf) of this Section. No Bank shall have any obligation to make a Loan hereunder and no Letter of Credit Issuer shall have any obligation to issue a Letter of Credit hereunder at any time unless all conditions precedent have been satisfied before or at such time. The conditions precedent are included for the exclusive benefit of the Administrative Agent and the Banks. In the event that any one more Banks makes available a Loan or any one or more Letter of Credit Issuers issues a Letter of Credit at the request of the Borrower notwithstanding that any one or more of the conditions precedent thereto have not been satisfied in whole or in part, such waiver shall not operate as to waive the right of the Administrative Agent, the Banks and the Letter of Credit Issuers to require strict compliance thereafter.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Obligors Borrower set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are the representations contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Section 3.04(a) and 3.12(b)) shall be true and correct in all material respects on and as of the date of such BorrowingLoan (or, before and after giving effect to such Borrowing, or if any such representation or warranty was is expressly stated to have been made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such specific date).
(b) At the time of and immediately after giving effect to such BorrowingLoan, no Default shall have occurred and be continuing.
(c) The Borrower sum of the total “Revolving Credit Exposures” under (and as defined in) the Revolving Facility Agreement shall have delivered a Borrowing Request in accordance with Section 2.03equal or exceed the “Aggregate Commitment” under (and as defined in) the Revolving Facility Agreement.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent The Borrower shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided delivered to the Administrative Agent on or before (for distribution to the Lenders) updated Schedules hereto, giving effect to the CheckFree Acquisition, which Schedules modify the Section to which they relate as of the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms consummation of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such BorrowingCheckFree Acquisition.
(e) With respect to any Borrowing The CheckFree Acquisition shall be consummated substantially simultaneously with the proceeds funding of which are being utilized to make a Special Repaymentthe initial Loan hereunder in accordance with applicable law and the merger agreement related thereto.
(f) All governmental and third party approvals necessary or, in the discretion of the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payableAgent, (y) permitted to be prepaid or (z) being irrevocably called for redemption advisable in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement the consummation of the proceeds of such Borrowing or (ii) with money irrevocably deposited with CheckFree Acquisition and the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionTransactions shall have been obtained and be in full force and effect. Each Borrowing Request Loan shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a) and (b) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a the Loan to be made by it on the occasion of any each Borrowing Date is subject to the satisfaction of the following conditionsconditions precedent:
(a) The the Administrative Agent shall have received the Notice of Borrowing as provided in Section 2.06 and each Lender shall have received a Promissory Note for such Lender, duly executed and delivered by the Borrower in a principal amount equal to such Lender’s Loan;
(b) each of the representations and warranties made by the Borrower in or pursuant to this Agreement and each of the Obligors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are representations and warranties contained in any certificate or notice delivered furnished at any time by any Obligor under or in connection herewith or therewithon behalf of the Borrower pursuant to this Agreement, shall be true and correct in all material respects (or in all respects to the extent already qualified as to materiality) on and as of such Borrowing Date as if made on and as of such date (both before and immediately after giving effect to the Loans being made on such Borrowing Date and the application of proceeds thereof), except to the extent any of such representations and warranties expressly relate to an earlier date;
(c) no Default or Event of Default shall have occurred and be continuing on such Borrowing Date or immediately after giving effect to the Loans requested to be made on such date; and
(d) payment by the Borrower of all documented fees and expenses of the Administrative Agent or any Lender then due and payable under any Fee Letter or this Agreement, including the payment of all expenses, including the fees, costs and expenses of each party’s legal counsel, then due and payable under such Fee Letter or under Section 9.05(a); All documents submitted hereunder (other than the resolutions (or equivalent corporate actions) of the Board of Directors or Executive Committee delivered pursuant to Section 4.03(b)(i) hereto, the Organizational Documents, the powers of attorney of the Guarantors (including powers of attorney granted in favor of the Process Agent) shall be in English or accompanied by an English translation; provided that, the Administrative Agent’s sole obligation in respect of any documents submitted in a language other than English shall be to make such documents available to the Lenders on the Platform, and the Administrative Agent shall have no duties or obligations in respect of such documents. The giving of a Notice of Borrowing shall constitute a certification by the Borrower to the effect that the conditions set forth in Sections 4.02(b) have been fulfilled (as of the date of such Notice of Borrowing and, unless the Borrower otherwise notifies the Administrative Agent prior to the relevant date of Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such dateBorrowing Date).
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing (other than any conversion or continuation of such Borrowing), and of the Issuing Lenders to issue, renew, extend or amend so as to increase the stated amount of any Letter of Credit, is subject to the receipt of an appropriate Borrowing Request under Section 2.03 or request for issuance, renewal, extension or amendment of a Letter of Credit under Section 2.06, as the case may be, and to the satisfaction of the following conditions:
(a) The representations and warranties of the Obligors Borrower set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects respects, and the representations and warranties of the Borrower and the other Loan Parties set forth in the other Loan Documents shall be true and correct in all material respects, on and as of the date of such Borrowing, before and after giving effect to such Borrowing, Borrowing or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as the date of such dateissuance, amendment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such BorrowingBorrowing or such issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) The obligation of each Lender with a Revolving Commitment to make Revolving Loans and the Obligation of the Swingline Lender to make Swingline Loans shall be subject to the satisfaction of the condition that at the time of each such extension of credit and immediately after giving effect thereto the Borrower and its Subsidiaries shall have delivered a Borrowing Request not hold cash and Temporary Cash Investments in accordance with Section 2.03.
an aggregate amount (d) With respect after giving effect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds incurrence of such Borrowing extension of credit and the application of proceeds therefrom and any other cash or Temporary Cash Investments) on hand (to the extent such proceeds and/or other cash or Temporary Cash Investments are actually utilized by the Borrower and/or any Subsidiary on the respective date of incurrence of the respective extension of credit for a permitted purpose other than an investment in Temporary Cash Investments) in excess of $100,000,000; PROVIDED that for the purposes of determinations made pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement paragraph (c) cash and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval Temporary Cash Investments will not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowinginclude Restricted Cash.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Obligors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With Except as provided in paragraph (f) of this Section, with respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption.
(f) With respect to any Borrowing the proceeds of which are being deposited into the Special Repayment Account pursuant to Section 2.04(a) to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it identifying the Allocated Existing Indenture Debt which is intended to be redeemed or otherwise repaid from such Special Repayment. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.
Appears in 1 contract
Samples: 364 Day Senior Bridge Loan Agreement (Tyco International LTD /Ber/)
Each Borrowing. The obligation of each Lender the Lenders to make a Loan an Advance on the occasion of any Borrowing is subject to the satisfaction of the following conditionsconditions on and as of the date of such Borrowing:
(a) The representations and warranties of the Obligors Borrower and the Subordinated Lenders set forth in Article III the Credit Documents and of this the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and (after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such dateapplicable qualifications relating to materiality set forth herein).
(b) The covenants of the Borrower and the Subordinated Lenders set forth in the Credit Documents and of the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement shall not have been breached (after giving effect to any applicable grace periods set forth herein).
(c) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(cd) The Borrower Administrative Agent shall have delivered received an Approval Request (if applicable) and a Borrowing Request as set forth in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid 2.03 and such other documents and certificates as the Administrative Agent or redeemed with its counsel may reasonably request, and the Administrative Agent shall have approved such Approval Request if the proceeds of such Borrowing are intended to purchase Warehouse Assets.
(e) Each Warehouse Asset to be acquired by the Borrower satisfies the Eligibility Criteria, the Concentration Limits, and the Eligibility Standard.
(f) The Initial Subnotes and all other than pursuant to a Special RepaymentSubordinated Notes have been purchased in accordance with Section 2.09(b)(ii), and 100% of the Administrative Agent shall have received evidence reasonably satisfactory to it cash that the conditions to Borrower has received from the tender offers commenced for the repurchase or redemption issuance of such Allocated Existing Indenture Debt Subordinated Notes shall have been satisfied pursuant (x) applied to purchase Warehouse Assets, (y) deposited into the Reserve Account and applied as set forth in Section 2.03(b) or (z) in the case of Subordinated Notes other than the Initial Subnotes, applied as otherwise permitted by Section 2.07(a) or Section 2.09(b)(i).
(g) Prior to the terms of Pricing Date, at the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders time of such Allocated Existing Indenture Debt pursuant Borrowing, no LTV Ratio Event shall have occurred and be continuing and no LTV Ratio Event will occur immediately after giving effect to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(eh) With respect to any Borrowing For the proceeds avoidance of which are being utilized to make a Special Repaymentdoubt, the Administrative Agent Commitment Termination Date shall not have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionoccurred. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower and the Subordinated Lenders on the date of such Borrowing Request and thereof as to (x) in the date case of the Borrowing requested thereunder as to Borrower, the matters specified in paragraphs this Section 5.02 and (y) in the case of the Subordinated Lenders, the matters specified in clauses (a) and (b) of this SectionSection 5.02.
Appears in 1 contract
Each Borrowing. The obligation of each Lender Lenders shall not be required to make a Loan any Borrowing and the Issuing Lender shall not be required to issue, amend, renew or extend any Facility Letters of Credit, unless on the occasion applicable Borrowing Date or Issuance Date (or date of any Borrowing is subject to the satisfaction amendment, renewal or extension of the following conditions:a Facility Letter of Credit):
(ai) There exists no Default or Unmatured Default;
(ii) The representations and warranties of the Obligors set forth Borrower contained in Article III V are true and correct in all material respects as of this Agreement (other than Section 3.04such date with respect to Borrower and to any Subsidiary in existence on such date; provided that any representation or warranty that is qualified as to “materiality”, Section 3.05(a)(i) Material Adverse Effect or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, similar language shall be true and correct in all material respects on such Borrowing Date and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was that is stated to relate solely to an earlier date shall be true and correct in all material respects on and as of such earlier date.;
(biii) At The External Management Agreement shall be in full force and effect, DDR Asset Management, LLC or another Wholly-Owned Subsidiary of DDR is the time “Service Provider” under the External Management Agreement and the Borrower has not (A) delivered or received a notice of and immediately after giving effect termination with respect to such Borrowing, no Default shall have occurred and be continuing.the External Management Agreement or (B) received a notice of default under the External Management Agreement;
(civ) The Borrower shall have delivered a Borrowing Request There exists no Event of Default (as defined in accordance with Section 2.03.the CMBS Loan Agreement) under the CMBS Loan Agreement; and
(dv) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with There exists no Guarantor Default (as defined in the proceeds of such Borrowing (other than pursuant to a Special RepaymentDDR Guaranty), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request with respect to each such Borrowing or such Letter of Credit Request shall be deemed to constitute a representation and warranty by the Obligors on Borrower that the date of such Borrowing Request and conditions contained in Section 4.2 have been satisfied or otherwise waived by the date of the Borrowing requested thereunder as to the matters specified Lenders in paragraphs (a) and (b) of this Sectionaccordance with Section 8.2.
Appears in 1 contract
Samples: Credit Agreement (Retail Value Inc.)
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any each Borrowing is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all respects (or, in the case of any representation or warranty that is not qualified as to materiality, in all material respects respects) on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, Borrowing no Default shall have occurred and be continuing.
(c) The Borrower With respect to any Tranche A-1 Loan, at the time of and immediately after giving effect to such Loan, the amount of such Tranche A-1 Loan shall have not exceed the sum of all amounts paid or payable in respect of the Purchase Price due in respect of orders or purchases of any Vendor Product delivered a at any time during the twenty-four month period preceding the date of such Borrowing Request and against which no Tranche A Loan has yet been made, and the proceeds of such Tranche A-1 Loan shall be used in accordance with the requirements of Section 2.035.10; provided, it is understood and agreed that Vendor Product (i) that is subject to a third party purchase money security interest will not create availability under the Tranche A-1 Commitment pursuant to this Section 4.02(c) ("TRANCHE A-1 AVAILABILITY") unless the invoice with respect to such Vendor Product will be paid in full with the proceeds of such Tranche A-1 Loan and such security interest is released (whether by operation of law or otherwise) and (ii) that has been purchased and paid for by the Borrower or any Subsidiary with the proceeds from one or more Asset Sales of Vendor Product will not create Tranche A-1 Availability to the extent the Vendor Product sold in the Asset Sale previously created Tranche A-1 Availability.
(d) With respect to any Allocated Existing Indenture Debt Tranche A-2 Loan, at the time of and immediately after giving effect to such Borrowing, the amount of such Tranche A-2 Loan shall not exceed 25% of the Purchase Price of Vendor Product that was ordered or purchased, against which no Tranche A Loan has yet been made, and the proceeds of such Tranche A-2 Loan shall be repaid or redeemed used in accordance with the requirements of Section 5.10; provided, it is understood and agreed that 72 Vendor Product (i) that is subject to a third party purchase money security interest will not create availability under the Tranche A-2 Commitment pursuant to this Section 4.02(d) ("TRANCHE A-2 AVAILABILITY") unless the invoice with respect to such Vendor Product will be paid with the proceeds of a Tranche A Loan and such Borrowing security interest is released (other than pursuant to a Special Repayment), whether by operation of law or otherwise) and (ii) that has been purchased and paid for by the Administrative Agent shall have received evidence reasonably satisfactory to it that Borrower or any Subsidiary with the conditions proceeds from one or more Asset Sales of Vendor Product will not create Tranche A-2 Availability to the tender offers commenced for extent the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to Vendor Product sold in the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such BorrowingAsset Sale previously created Tranche A-2 Availability.
(e) With respect to any Borrowing Tranche A-3 Loan, at the time of and immediately after giving effect to such Borrowing, the amount of such Tranche A-3 Loan shall not exceed **** of the purchase price of Vendor Product that was ordered or purchased, against which no Tranche A Loan has yet been made, and the proceeds of which are being utilized to make a Special Repaymentsuch Tranche A-3 Loan shall be used in accordance with the requirements of Section 5.10; PROVIDED, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through Vendor Product that is subject to a direct disbursement third party purchase money security interest will not create availability under the Tranche A-3 Commitment pursuant to this Section 4.02(e) ("TRANCHE A-3 AVAILABILITY") unless the invoice with respect to such Vendor Product will be paid with the proceeds of a Tranche A-3 Loan and such security interest is released (whether by operation of law or otherwise); (ii) Vendor Product that has been purchased and paid for by the Borrower or any Subsidiary with the proceeds from one or more Asset Sales of Vendor Product will not create Tranche A-3 Availability to the extent the Vendor Product sold in the Asset Sale previously created Tranche A-3 Availability; and (iii) in the case of Tranche A-3 Loans funded by a CSCC Lender, only Cisco Product delivered by a Cisco Vendor after the Second Amendment Effective Date shall constitute Vendor Product (except as otherwise set forth in the proviso in Section 5.10(c)). So long as any CSCC Lender holds any Tranche A-3 Loans or any Tranche A-3 Commitments, clause (iii) of the proviso of this Section 4.02(e) shall not be amended, modified or waived without the prior written consent of CSCC.
(f) Solely with respect to Tranche A-1 Loans, the Vendor Product for which the Purchase Price is to be paid with the proceeds of such Borrowing or (ii) is intended to be used in a Permitted UCC Jurisdiction. Solely with money irrevocably deposited respect to the Tranche A-3 Loans, the Vendor Product for which the purchase price is to be paid with the trusteeproceeds of such Borrowing is intended to be used in a Permitted UCC Jurisdiction.
(g) At the time of and immediately after giving effect to such Borrowing, paying agent the Borrower shall have all necessary Real Estate Rights, and sufficient financing, to build the Segment or fiscal agent for such Existing Indenture Debt (through a direct disbursement of portion thereof proposed to be built with the proceeds of such Borrowing.
(h) for payment Solely with respect to the Tranche A-3 Loans and only if a CSCC Lender then holds any unfunded Tranche A-3 Commitment, at the time of and immediately after giving effect to such Existing Indenture Debt upon expiration Borrowing, either (i) the aggregate outstanding principal amount of the relevant notice period for such redemptionTranche A-1 Loans and Tranche A-2 Loans shall be equal to or greater than the outstanding principal amount of the Tranche A-3 Loans or (ii) ************ in Tranche A-1 Loans and *********** in Tranche A-2 Loans shall have been funded or shall have been duly requested by the Borrower and required to be funded under the provisions of this Agreement. So long as any CSCC Lender holds any Tranche A-3 Loans or any Tranche A-3 Commitments, this Section 4.02(h) shall not be amended, modified or waived without the prior written consent of CSCC. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a) and (b) of this SectionSection 4.02.
Appears in 1 contract
Samples: Credit Agreement (Velocita Corp)
Each Borrowing. The obligation of each Lender the Lenders to make a Loan an Advance on the occasion of any Borrowing is subject to the satisfaction of the following conditionsconditions on and as of the date of such Borrowing:
(a) The representations and warranties of the Obligors Borrower and the Equity Investors set forth in Article III the Credit Documents and of this the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such datecorrect.
(b) The covenants of the Borrower and the Equity Investors set forth in the Credit Documents and of the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement shall not have been breached.
(c) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(cd) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of an Approval Request (if applicable) and a Borrowing Request as set forth in Section 2.03 and such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form other documents and certificates as provided to the Administrative Agent on or before its counsel may reasonably request, and the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by Borrower shall have received an Approval Notice from the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such BorrowingAgent.
(e) With respect Each Warehouse Asset to any Borrowing be acquired by the proceeds of which are being utilized to make a Special Repayment, Borrower satisfies the Administrative Agent Eligibility Criteria and the Concentration Limits.
(f) The Minimum Equity Amount shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is been (x) due and payable, applied to purchase Warehouse Assets or (y) permitted deposited into the Reserve Account and applied as set forth in Section 2.03(b).
(g) Prior to be prepaid or (z) being irrevocably called for redemption in connection with the Pricing Date, at the time of such Borrowing, no Borrowing Base Deficiency shall have occurred and is being paid in cash be continuing.
(ih) through a direct disbursement For the avoidance of doubt, the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionCommitment Termination Date shall not have occurred. Each Borrowing Request shall be deemed to constitute a representation and warranty by (i) the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs this Section 5.02 and (aii) by each Equity Investor on the date thereof as to the matters specified in Section 5.02(a) and Section 5.02(b). Notwithstanding anything herein to the contrary, all parties acknowledge that the Indenture, dated as of July 16, 2010 (b) the “Indenture”), by and between the Borrower, as issuer thereunder, and U.S. Bank National Association, related rights and obligations, debts and security interest granted thereunder are and will be outstanding for a reasonable amount of this Sectiontime necessary to discharge the same.
Appears in 1 contract
Each Borrowing. The obligation of each Lender the Banks to make a each Loan on the occasion hereunder and of any Borrowing Letter of Credit Issuer to issue or amend each Letter of Credit is subject at the time of such Loan or issuance or amendment of such Letter of Credit to the satisfaction of the following conditions:
(a) The representations and warranties the satisfaction of the Obligors conditions set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.3.1;
(b) At receipt by the time Administrative Agent of and a Notice of Borrowing as required by Section 2.2;
(c) the fact that, immediately after giving effect to any Borrowing of Revolving Loans, the aggregate U.S. Dollar Amount of all Revolving Loans made hereunder plus the U.S. Dollar Equivalent of all Swing Loans and Letter of Credit Outstandings will not exceed the Total Revolving Credit Commitments in effect;
(d) the fact that, immediately before and after such Borrowing, no Default shall have occurred and be continuing.;
(ce) The Borrower the fact that the representations and warranties of the Credit Parties contained in this Agreement shall have delivered a Borrowing Request be true and correct in accordance with Section 2.03.
all material respects (dwhere not already qualified by materiality, otherwise in all respects) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with on and as of the proceeds date of such Borrowing (other than pursuant representations and warranties that relate to a Special Repaymentspecific date, which shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) as of such date); and
(f) with respect to the transactions contemplated by the Credit Agreement, the Administrative Agent each Credit Party shall have received evidence reasonably satisfactory obtained any necessary consents, waivers, approvals, authorizations, registrations, filings, licenses and notifications (including, if necessary, qualifying to it that do business in, and qualifying under the conditions to applicable consumer laws of, each jurisdiction where the tender offers commenced for applicable party is then doing business, or is in the repurchase or redemption process of obtaining such Allocated Existing Indenture Debt shall have been satisfied pursuant to qualification in each jurisdiction where the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not applicable party is expected to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of doing business utilizing the proceeds of such Borrowing.
(eLoan) With respect and the same shall be in full force and effect, except where the failure to any Borrowing the proceeds of which are being utilized obtain such consent, qualification or other item could not reasonably be expected to make have a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionMaterial Adverse Effect. Each Borrowing Request hereunder shall be deemed to constitute be a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters facts specified in paragraphs clauses (ac), (d), (e) and (bf) of this Section. No Bank shall have any obligation to make a Loan hereunder and no Letter of Credit Issuer shall have any obligation to issue a Letter of Credit hereunder at any time unless all conditions precedent have been satisfied before or at such time. The conditions precedent are included for the exclusive benefit of the Administrative Agent and the Banks. In the event that any one more Banks makes available a Loan or any one or more Letter of Credit Issuers issues a Letter of Credit at the request of the Borrower notwithstanding that any one or more of the conditions precedent thereto have not been satisfied in whole or in part, such waiver shall not operate as to waive the right of the Administrative Agent, the Banks and the Letter of Credit Issuers to require strict compliance thereafter.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to -------------- make a Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower At the time of and immediately after giving effect to such Borrowing, (i) the aggregate principal amount of all Loans (excluding up to $30,000,000 of Loans made to finance the Permitted Third Party Payments described in clause (a) of the definition of "Permitted Third Party Payments") made hereunder (whether or not repaid) shall have delivered not exceed [*] of the sum of the aggregate Purchase Price payments made to Lucent at or prior to such time plus the aggregate Eligible Agency Plan Payments made at or prior to such time, (ii) the ratio of Total Indebtedness to Total Contributed Capital shall not exceed 2.0 to 1.0 and (iii) the aggregate principal amount of all Eligible Secured Debt described in clauses (a), (b) and (c) of the definition of "Eligible Secured Debt" that has been incurred (on a Borrowing Request in accordance with Section 2.03cumulative basis, whether or not such Eligible Secured Debt remains outstanding) shall not exceed $1,845,000,000.
(d) With In the case of a Borrowing to finance the Purchase Price of any assets, a License Subsidiary shall have a valid FCC License for the geographic market in which such assets are to be installed or operated; provided that the condition set forth in this paragraph (d) shall not apply -------- with respect to any Allocated Existing Indenture Debt Borrowings to be repaid finance the Purchase Price or redeemed Eligible Agency Plan Payments in respect of assets that are being resold to ChaseTel prior to consummation of the ChaseTel Acquisition in accordance with the proceeds of such Borrowing Section 6.04(c). [*] Certain material (other than indicated by an asterisk) has been omitted from this document pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced request for the repurchase or redemption of such Allocated Existing Indenture Debt shall have confidential treatment. The omitted material has been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited filed separately with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionSecurities and Exchange Commission. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a), (b), (c) and (bd) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of each Borrowing (including any Borrowing is on the Closing Date), and of any Issuing Bank to issue, amend, renew, extend or convert into a Loan any Letter of Credit, shall be subject to the satisfaction further conditions precedent that on the date of such Borrowing (which term shall, for the purposes of this Section 4.02, include any issuance, renewal, extension or conversion of a Letter Of Credit pursuant hereto), and both immediately before and after giving effect thereto, the following conditionsstatements shall be true:
(a) The the Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as required by Section 2.06(b) or, in the case of a Swingline Borrowing, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.05(a), in each case such notice or request to a calculation, to be based on the most recently reported Borrowing Base calculation, establishing the existence of sufficient Excess Availability to make such Borrowing;
(b) the representations and warranties of the Obligors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are each Borrower contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, each Loan Document shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date., immediately 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 such representations or warranties that, by their terms, refer to a specific date other than the date of such Borrowing, in which case as of such specific date;
(bc) after giving effect to any Borrowing and/or the issuance of any Letters of Credit, Excess Availability shall be not less than zero;
(d) At the time of and immediately after giving effect to such BorrowingBorrowing (other than an amendment, extension or renewal of a Letter of Credit without any increase in the Stated Amount of such Letter of Credit), as applicable, no Event of Default or Default shall have occurred and be continuing.; and
(ce) The Borrower shall have delivered By the date of the initial Borrowing or issuance of a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds Letter of such Borrowing (other than pursuant to a Special Repayment)Credit, the Administrative Agent shall have received evidence reasonably satisfactory to it that a notice setting forth the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms deposit account of the Repurchase DocumentationBorrowers (including any subsequent deposit account information provided by the Borrowers, in such form as provided the “Funding Account”) to which the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved is authorized by the Administrative Agent (such approval not Borrowers to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of transfer the proceeds of such Borrowing.
(e) With respect any Borrowings requested or authorized pursuant to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionthis Agreement. Each Borrowing Request and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Obligors each Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (ab), (c) and (bd) of this SectionSection 4.02.
Appears in 1 contract
Each Borrowing. The obligation of each Lender the Banks to make a each Loan on the occasion hereunder and of any Borrowing Letter of Credit Issuer to issue or amend each Letter of Credit is subject at the time of such Loan or issuance or amendment of such Letter of Credit to the satisfaction of the following conditions:
(a) The the satisfaction of the conditions set forth in Section 3.1;
(b) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2;
(c) the fact that, immediately after any Borrowing of Revolving Loans or any issuance or amendment of a Letter of Credit, the aggregate U.S. Dollar Equivalent of all Revolving Loans made hereunder plus the U.S. Dollar Equivalent of all Swing Loans and Letter of Credit Outstandings will not exceed the Total Revolving Credit Commitments in effect;
(d) the fact that, immediately before and after such Borrowing or such issuance or amendment of a Letter of Credit, no Default shall have occurred and be continuing;
(e) the fact that the representations and warranties of the Obligors set forth Credit Parties contained in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects (where not already qualified by materiality, otherwise in all respects) on and as of the date of such Borrowing, before Borrowing or such issuance or amendment of a Letter of Credit (other than representations and after giving effect warranties that relate to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was which shall be true and correct in all material respects on and (where not already qualified by materiality, otherwise in all respects) as of such date.); and
(bf) At with respect to the time of and immediately after giving effect to such Borrowingtransactions contemplated by this Agreement, no Default each Credit Party shall have occurred obtained any necessary consents, waivers, approvals, authorizations, registrations, filings, licenses and be continuing.
notifications (c) The Borrower shall have delivered a Borrowing Request including, if necessary, qualifying to do business in, and qualifying under the applicable consumer laws of, each jurisdiction where the applicable party is then doing business, or is in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt the process of obtaining such qualification in each jurisdiction where the applicable party is expected to be repaid or redeemed with doing business utilizing the proceeds of such Borrowing (other than pursuant to a Special Repayment), Loan) and the Administrative Agent same shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full force and effect, except where the failure to obtain such consent, qualification or are being paid in full in cash through other item could not reasonably be expected to have a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionMaterial Adverse Effect. Each Borrowing Request and each issuance or amendment of a Letter of Credit hereunder shall be deemed to constitute be a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters facts specified in paragraphs clauses (ac), (d), (e) and (bf) of this SectionSection 3.2. No Bank shall have any obligation to make a Loan hereunder and no Letter of Credit Issuer shall have any obligation to issue a Letter of Credit hereunder at any time unless all conditions precedent have been satisfied before or at such time. The conditions precedent are included for the exclusive benefit of the Administrative Agent and the Banks. In the event that any one more Banks makes available a Loan or any one or more Letter of Credit Issuers issues a Letter of Credit at the request of the Borrower notwithstanding that any one or more of the conditions precedent thereto have not been satisfied in whole or in part, such waiver shall not operate as to waive the right of the Administrative Agent, the Banks and the Letter of Credit Issuers to require strict compliance thereafter.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of each Borrowing (including any Borrowing is on the Closing Date), and of any Issuing Bank to issue, amend, renew or extend any Letter of Credit, shall be subject to the satisfaction further conditions precedent that on the date of such Borrowing (which term shall, for the purposes of this Section 4.02, include any issuance, amendment (increasing the face amount thereof), renewal, or extension of a Letter of Credit pursuant hereto), and both immediately before and after giving effect thereto, the following conditionsstatements shall be true:
(a) The the Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of the issuance of a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance amendment, renewal or extension of such Letter of Credit as required by Section 2.06(b), in each case such notice or request to a calculation, to be based on the most recently reported Borrowing Base calculation, establishing the existence of sufficient Excess Availability to make such Borrowing and certifying that, immediately before and immediately after giving effect to any such Borrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of any Letter of Credit, such Borrowing or issuance, amendment, renewal, or extension (and the incurrence or existence of the Liens created pursuant to the Loan Documents) is permitted under all material Debt of Borrower (including (i) the 2009 Senior Note Indenture, (ii) the 2009 Senior Subordinated Convertible Note Indenture, (iii) the Recovery Zone Bonds Loan Agreements, (iv) the Term Loan Agreement and (v) any other material Debt for Borrowed Money of or binding upon Borrower or its properties) and that no default or event of default thereunder would arise as a result of such Borrowing or issuance;
(b) immediately before and immediately after giving effect to any Borrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of any Letter of Credit, (i) the representations and warranties of the Obligors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are Borrower contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be Section 3.26 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, or if any such representation or warranty was made as of a specific date, such (ii) each other representation and warranty was true and of Borrower contained in each Loan Document shall be correct in all material respects on and as of such date and to the application of the proceeds therefrom, as though made on and as of such date., other than any such representations or warranties that, by their terms, refer to a specific date other than the date of such Borrowing or issuance, amendment, renewal or extension, in which case as of such specific date;
(bc) At on the Closing Date and immediately before and immediately after giving effect to any Borrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of any Letter of Credit (i) Excess Availability shall not be less than zero and (ii) US Liquidity shall be greater than $250 million;
(d) at the time of and immediately after giving effect to such BorrowingBorrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of any Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any increase in the Stated Amount of such Letter of Credit), as applicable, no Event of Default or Default shall have occurred and be continuing.; AMENDED AND RESTATED ABL CREDIT AGREEMENT
(ce) The Borrower shall have delivered by the date of the initial Borrowing or issuance of a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds Letter of such Borrowing (other than pursuant to a Special Repayment)Credit, the Administrative Agent shall have received evidence reasonably satisfactory a notice setting forth the deposit account of Borrower (the “Funding Account”) to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to which the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved is authorized by the Administrative Agent (such approval not Borrower to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of transfer the proceeds of such Borrowing.
(e) With respect any Borrowings requested or authorized pursuant to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.Agreement; and
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any Borrowing under any Participating Credit Agreement is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties, Shareholders and Sponsors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all material respects on and as of the date of such BorrowingBorrowing (or, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific relates to another date, such representation and warranty was true and correct in all material respects on and as of such other date).
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower At the time of such Borrowing, Vesper and the Subsidiaries shall have delivered be in compliance, on a Borrowing Request pro forma basis after giving effect to such Borrowing, with the covenants contained in accordance with Section 2.03Sections 6.16 and 6.17.
(d) With respect At the time of and immediately after giving effect to such Borrowing, no moratorium or other action by any Allocated Existing Indenture Debt Governmental Authority which restricts the ability of any Loan Party to be repaid make any payment when due under any Loan Document or redeemed with to transfer US dollars to the proceeds of such Borrowing (United States shall have occurred, other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it administrative requirements that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may can be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowingroutinely satisfied.
(e) With At the time of and immediately after giving effect to such Borrowing, the aggregate principal amount of all Tranche A Loans and Tranche B Loans made under any Participating Credit Agreement (whether or not repaid) shall not exceed 150% of the Borrowing Base relating to such Participating Credit Agreement.
(f) At the time of and immediately after giving effect to such Borrowing, the aggregate principal amount of all Tranche A Loans and Tranche B Loans made under any Participating Credit Agreement (whether or not repaid) for the purposes described in clauses (b), (c), (d) with respect to any optional prepayment of any Tranche C Borrowing and (e) of the proceeds first sentence of which are being utilized to make a Special Repayment, Section 5.10 shall not exceed 50% of the Administrative Agent shall have received evidence reasonably satisfactory to it aggregate principal amount of Tranche A Loans and Tranche B Loans made thereunder (whether or not repaid) for the purposes described in clause (a) of the first sentence of Section 5.10; provided that the Allocated Existing Indenture Debt which condition set forth in this paragraph (f) shall not apply to any Borrowing that is being redeemed or otherwise repaid from such Special Repayment is made solely to finance (x) due import taxes and payable, duties for Vendor Manufactured Equipment which has been ordered pursuant to a binding purchase order under the related Supply Contract or (y) permitted fees payable under the applicable Participating Credit Agreement and closing expenses payable under the applicable Participating Credit Agreement on the Effective Date. For purposes of paragraphs (e) and (f), Loans made under the Initial Participating Credit Agreement and Loans made under any Additional Participating Credit Agreement to replace Loans that would have been made under the Initial Participating Credit Agreement shall be prepaid or deemed to have been made under the same Participating Credit Agreement.
(zg) being irrevocably called for redemption in connection Concurrent with such Borrowing, Vesper shall issue and is being paid the Borrower shall purchase, in cash accordance with the terms of the Note Purchase Agreement, a Note (i) through a direct disbursement of in principal amount equal to the proceeds amount of such Borrowing or and (ii) with money irrevocably deposited with bearing an interest rate at least equal to the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of interest rate applicable to such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a), (b), (c), (d), (e), (f) and (bg) of this SectionSection 4.02.
Appears in 1 contract
Samples: Common Agreement (Velocom Inc)
Each Borrowing. The obligation Except as expressly provided below, the obligations of each Lender the Lenders to make a Loan Loans to any Borrower hereunder on any date, including to the Borrowers on the occasion of any Borrowing is Tender Funding Date, are subject to the satisfaction of the following conditionsconditions precedent on or before the date of each Borrowing, but in no event after the Maturity Date:
(a) The Such Borrower shall have provided the notice as required by Section 2.03.
(b) Other than in the case of the Loans to be made on the Tender Funding Date, the representations and warranties of the Obligors set forth in Article III of this Agreement hereof (other than the representations and warranties set forth in Section 3.04, Section 3.05(a)(i) or (b), or Section 3.08 and 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving Borrowing with the same effect to such Borrowing, or if any such representation or warranty was as though made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date.
(bc) At the time of and immediately after giving effect to such Borrowing, Borrowing no Event of Default or Default shall have occurred and be continuing.
(ci) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with To the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (extent not reviewed and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable prior to the holders date hereof, the Administrative Agent and the Required Lenders shall be reasonably satisfied with the Related Documents, the schedules thereto and all other related documentation and (ii) the capital structure of such Allocated Existing Indenture Debt pursuant the Restricted Group Members before and after giving effect to the terms Transactions shall be consistent with the provisions of the Repurchase Documentation have been paid in full Transaction Documents or are being paid in full in cash through a direct disbursement of otherwise reasonably satisfactory to the proceeds of such BorrowingAdministrative Agent and the Required Lenders.
(e) With respect No injunctive or similar relief shall have been granted by any Governmental Authority and be in effect (before and after giving effect to any the Transactions) that restrains, prevents or imposes burdensome conditions on either of the Facilities or prohibits the Borrowing the proceeds of which are being utilized hereunder.
(f) There shall have been paid to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that Agent, for the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is account of the Arrangers (xand their respective Affiliates) and the Lenders, as applicable, all fees and expenses (including reasonable fees and expenses of counsel) due and payable, (y) permitted to be prepaid payable on or (z) being irrevocably called for redemption in connection with before such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request by any Borrower shall be deemed to constitute a representation and warranty by such Borrower and, in the Obligors case of a Borrowing Subsidiary, Alcoa on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (ab) and (bc) of this SectionSection 4.03. Notwithstanding any contrary provision hereof, a conversion of a Borrowing to a different Type or a continuation of a Borrowing in its existing Type shall not be considered a new Borrowing.
Appears in 1 contract
Samples: Term Credit Agreement (Alcoa Inc)
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of each Borrowing (including any Borrowing is on the Closing Date), and of any Issuing Bank to issue, amend, renew or extend any Letter of Credit, shall be subject to the satisfaction further conditions precedent that on the date of such Borrowing (which term shall, for the purposes of this Section 4.02, include any issuance, amendment (increasing the face amount thereof), renewal, or extension of a Letter of Credit pursuant hereto), and both immediately before and after giving effect thereto, the following conditionsstatements shall be true:
(a) The representations and warranties the Administrative Agent shall have received, in the case of a Borrowing, a Borrowing Request as required by Section 2.03 or, in the case of the Obligors set forth in Article III issuance of this Agreement (other than a Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance, amendment, renewal or extension of such Letter of Credit as required by Section 3.04, Section 3.05(a)(i) or (b2.06(b), and such Borrowing Request or Section 3.09) such notice shall include or any other Loan Documentbe accompanied by a certification that, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, both immediately before and immediately after giving effect to such BorrowingBorrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of such Letter of Credit, (i) (A) Exposure shall not exceed the Available Commitments and (B) Adjusted Exposure shall not exceed the lesser of (I) the Available Commitments and (II) the Borrowing Base (based on the most recently reported Borrowing Base calculation), together with reasonably detailed calculations of the same, and (ii) such Borrowing or issuance, amendment, renewal, or if extension (and the incurrence or existence of the Liens created pursuant to the Loan Documents) is permitted under all material Debt of Borrower (including (A) the 2009 Senior Note Indenture, (B) the Additional Indenture, (C) the Recovery Zone Bonds Loan Agreements, (D) the Term Loan Agreement and (E) any other material Debt for Borrowed Money of or binding upon Borrower or its properties) and that no default or event of default thereunder would arise as a result of such representation Borrowing or warranty was made as issuance;
(b) immediately before and immediately after giving effect to any Borrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of a specific dateany Letter of Credit, such (i) the representations and warranties of Borrower contained in Section 3.26 are true and correct and (ii) each other representation and warranty was true and of Borrower contained in each Loan Document shall be correct in all material respects on and as of such date and to the application of the proceeds therefrom, as though made on and as of such date., other than any such representations or warranties that, by their terms, refer to a specific date other than the date of such Borrowing or issuance, amendment, renewal or extension, in which case as of such specific date;
(bc) At on the Closing Date and immediately before and immediately after giving effect to any Borrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of any Letter of Credit (i) aggregate Exposure shall not exceed the Available Commitments, (ii) Adjusted Excess Availability shall not be less than zero and (iii) U.S. Liquidity shall be greater than $250 million;
(d) at the time of and immediately after giving effect to such BorrowingBorrowing and/or the issuance, amendment (increasing the face amount thereof), renewal or extension of any Letter of Credit (other than an amendment, extension or renewal of a Letter of Credit without any increase in the Stated Amount of such Letter of Credit), as applicable, no Event of Default or Default shall have occurred and be continuing.;
(ce) The Borrower shall have delivered by the date of the initial Borrowing or issuance of a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds Letter of such Borrowing (other than pursuant to a Special Repayment)Credit, the Administrative Agent shall have received evidence reasonably satisfactory a notice setting forth the deposit account of Borrower (the “Funding Account”) to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to which the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved is authorized by the Administrative Agent (such approval not Borrower to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of transfer the proceeds of such Borrowing.
(e) With respect any Borrowings requested or authorized pursuant to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due this Agreement; and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.SECOND AMENDED AND RESTATED ABL CREDIT AGREEMENT
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan on the occasion of any each Borrowing is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all respects (or, in the case of any representation or warranty that is not qualified as to materiality, in all material respects respects) on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, Borrowing no Default shall have occurred and be continuing.
(c) The Borrower With respect to any Tranche A-1 Loan, at the time of and immediately after giving effect to such Loan, the amount of such Tranche A-1 Loan shall have not exceed the sum of all amounts paid or payable in respect of the Purchase Price due in respect of orders or purchases of any Vendor Product delivered a at any time during the twenty-four month period preceding the date of such Borrowing Request and against which no Tranche A Loan has yet been made, and the proceeds of such Tranche A-1 Loan shall be used in accordance with the requirements of Section 2.035.10; provided, it is understood and agreed that Vendor Product (i) that is subject to a third party purchase money security interest will not create availability under the Tranche A-1 Commitment pursuant to this Section 4.02(c) ("TRANCHE A-1 AVAILABILITY") unless the invoice with respect to such Vendor Product will be paid in full with the proceeds of such Tranche A-1 Loan and such security interest is released (whether by operation of law or otherwise) and (ii) that has been purchased and paid for by the Borrower or any Subsidiary with the proceeds from one or more Asset Sales of Vendor Product will not create Tranche A-1 Availability to the extent the Vendor Product sold in the Asset Sale previously created Tranche A-1 Availability.
(d) With respect to any Allocated Existing Indenture Debt Tranche A-2 Loan, at the time of and immediately after giving effect to such Borrowing, the amount of such Tranche A-2 Loan shall not exceed 25% of the Purchase Price of Vendor Product that was ordered or purchased, against which no Tranche A Loan has yet been made, and the proceeds of such Tranche A-2 Loan shall be repaid or redeemed used in accordance with the requirements of Section 5.10; provided, it is understood and agreed that 72 Vendor Product (i) that is subject to a third party purchase money security interest will not create availability under the Tranche A-2 Commitment pursuant to this Section 4.02(d) ("TRANCHE A-2 AVAILABILITY") unless the invoice with respect to such Vendor Product will be paid with the proceeds of a Tranche A Loan and such Borrowing security interest is released (other than pursuant to a Special Repayment), whether by operation of law or otherwise) and (ii) that has been purchased and paid for by the Administrative Agent shall have received evidence reasonably satisfactory to it that Borrower or any Subsidiary with the conditions proceeds from one or more Asset Sales of Vendor Product will not create Tranche A-2 Availability to the tender offers commenced for extent the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to Vendor Product sold in the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such BorrowingAsset Sale previously created Tranche A-2 Availability.
(e) With respect to any Borrowing Tranche A-3 Loan, at the time of and immediately after giving effect to such Borrowing, the amount of such Tranche A-3 Loan shall not exceed *** of the purchase price of Vendor Product that was ordered or purchased, against which no Tranche A Loan has yet been made, and the proceeds of which are being utilized to make a Special Repaymentsuch Tranche A-3 Loan shall be used in accordance with the requirements of Section 5.10; PROVIDED, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through Vendor Product that is subject to a direct disbursement third party purchase money security interest will not create availability under the Tranche A-3 Commitment pursuant to this Section 4.02(e) ("TRANCHE A-3 AVAILABILITY") unless the invoice with respect to such Vendor Product will be paid with the proceeds of a Tranche A-3 Loan and such security interest is released (whether by operation of law or otherwise); (ii) Vendor Product that has been purchased and paid for by the Borrower or any Subsidiary with the proceeds from one or more Asset Sales of Vendor Product will not create Tranche A-3 Availability to the extent the Vendor Product sold in the Asset Sale previously created Tranche A-3 Availability; and (iii) in the case of Tranche A-3 Loans funded by a CSCC Lender, only Cisco Product delivered by a Cisco Vendor after the Second Amendment Effective Date shall constitute Vendor Product (except as otherwise set forth in the proviso in Section 5.10(c)). So long as any CSCC Lender holds any Tranche A-3 Loans or any Tranche A-3 Commitments, clause (iii) of the proviso of this Section 4.02(e) shall not be amended, modified or waived without the prior written consent of CSCC.
(f) Solely with respect to Tranche A-1 Loans, the Vendor Product for which the Purchase Price is to be paid with the proceeds of such Borrowing or (ii) is intended to be used in a Permitted UCC Jurisdiction. Solely with money irrevocably deposited respect to the Tranche A-3 Loans, the Vendor Product for which the purchase price is to be paid with the trusteeproceeds of such Borrowing is intended to be used in a Permitted UCC Jurisdiction.
(g) At the time of and immediately after giving effect to such Borrowing, paying agent the Borrower shall have all necessary Real Estate Rights, and sufficient financing, to build the Segment or fiscal agent for such Existing Indenture Debt (through a direct disbursement of portion thereof proposed to be built with the proceeds of such Borrowing.
(h) for payment Solely with respect to the Tranche A-3 Loans and only if a CSCC Lender then holds any unfunded Tranche A-3 Commitment, at the time of and immediately after giving effect to such Existing Indenture Debt upon expiration Borrowing, either (i) the aggregate outstanding principal amount of the relevant notice period for such redemptionTranche A-1 Loans and Tranche A-2 Loans shall be equal to or greater than the outstanding principal amount of the Tranche A-3 Loans or (ii) *** in Tranche A-1 Loans and *** in Tranche A-2 Loans shall have been funded or shall have been duly requested by the Borrower and required to be funded under the provisions of this Agreement. So long as any CSCC Lender holds any Tranche A-3 Loans or any Tranche A-3 Commitments, this Section 4.02(h) shall not be amended, modified or waived without the prior written consent of CSCC. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a) and (b) of this SectionSection 4.02.
Appears in 1 contract
Samples: Credit Agreement (Velocita Corp)
Each Borrowing. The obligation of each Lender the Banks to make a each Loan on the occasion of any Borrowing hereunder is subject at the time of such Loan to the satisfaction of the following conditions:
(a) The the satisfaction of the conditions set forth in Section 3.1;
(b) receipt by the Administrative Agent of a Notice of Borrowing as required by Section 2.2;
(c) the fact that, immediately after any Borrowing of Loans, the aggregate amount of all Loans made hereunder will not exceed the Total Commitments in effect;
(d) the fact that, immediately before and after such Borrowing, no Default shall have occurred and be continuing;
(e) the fact that the representations and warranties of the Obligors set forth Credit Parties contained in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing;
(f) with respect to the transactions contemplated by the Credit Agreement and the Pledge Agreements, before each Credit Party shall have obtained any necessary consents, waivers, approvals, authorizations, registrations, filings, licenses and after giving effect notifications (including, if necessary, qualifying to such Borrowingdo business in, and qualifying under the applicable consumer laws of, each jurisdiction where the applicable party is then doing business, or if any is in the process of obtaining such representation or warranty was made as of a specific date, such representation and warranty was true and correct qualification in all material respects on and as of such date.
(b) At each jurisdiction where the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt applicable party is expected to be repaid or redeemed with doing business utilizing the proceeds of such Borrowing Loan) and the same shall be in full force and effect, except where the failure to obtain such consent, qualification or other item could not reasonably be expected to have a material adverse effect on the Borrower and its Subsidiaries, taken as a whole; and
(other than g) the Pledge Agreements shall be in full force and effect, the Collateral Agent shall have a first priority perfected security interest in all assets of the Borrower and its Subsidiaries purported to be covered thereby (subject to the exceptions set forth therein and in Sections 6.18 and 10.1(a) hereof), and all filings (including, without limitation, pursuant to a Special Repayment)the Uniform Commercial Code or foreign equivalent) and recordings shall have been accomplished with respect to the Pledge Agreements in such jurisdictions as may be required by law to establish, perfect, protect and preserve the rights, titles, interests, remedies, powers, privileges, liens and security interests of the Collateral Agent in the collateral purposed to be covered thereby and any giving of notice or the taking of any other action to such end (whether similar or dissimilar) required by law shall have been given or taken. The Administrative Agent and the Collateral Agent shall have received satisfactory evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds such filing, recording, registration, giving of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed notice or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid other action so taken or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionmade. Each Borrowing Request hereunder shall be deemed to constitute be a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters facts specified in paragraphs clauses (ac), (d), (e), (f) and (bg) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender the Lenders to make a Loan an Advance on the occasion of any Borrowing is subject to the satisfaction of the following conditionsconditions on and as of the date of such Borrowing:
(a) The representations and warranties of each Borrower Party and the Obligors Equityholder set forth in Article III the Credit Documents and of this the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such datecorrect.
(b) The covenants of each Borrower Party and the Equityholder set forth in the Credit Documents and of the Warehouse Collateral Manager set forth in the Warehouse Collateral Management Agreement shall not have been breached.
(c) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(cd) The Borrower Administrative Agent shall have delivered received an Approval Request (if applicable) and a Borrowing Request as set forth in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid 2.03 and such other documents and certificates as the Administrative Agent or redeemed with its counsel may reasonably request, and the Administrative Agent shall have approved such Approval Request if the proceeds of such Borrowing (other than pursuant are intended to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowingpurchase Warehouse Assets.
(e) With respect Each Warehouse Asset to be acquired by the Borrower (or any Borrowing Borrower Party) satisfies the proceeds Eligibility Criteria and the Concentration Limits as of which are being utilized to make a Special Repaymentthe trade date of the related Warehouse Asset.
(f) Each Equity Contribution has been made in accordance with Section 2.09(b)(ii), and 100% of the Administrative Agent cash that the Borrower has received from Equity Contributions shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is been (x) due and payableapplied to purchase Warehouse Assets, (y) permitted to be prepaid deposited into the Reserve Account and applied as set forth in Section 2.03(b) or (z) being irrevocably called for redemption in the case of Equity Contributions other than the initial Equity Contribution, applied as otherwise permitted by Section 2.07(a) or Section 2.09(b)(i). - 71- USActive 55697678.955697678.10 have occurred.
(h) For the avoidance of doubt, the Commitment Termination Date shall not All terms and conditions of each Sale Agreement required to be satisfied in connection with the assignment of each Warehouse Asset on such Borrowingdate, including, the perfection of the applicable Borrower Party’s interests therein, shall have been satisfied in full, and is being paid in cash all filings (iincluding, UCC filings) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall required to be deemed to constitute a representation made by any Person and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.all actions - 72- USActive 55697678.955697678.10
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Revolving Loan on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The representations and warranties of the Obligors Borrower and the other Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any and the other Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all material respects (or, with respect to any representation or warranty qualified by materiality or a material adverse change or material adverse effect standard, in all respects) on and as of the date of such Borrowing, before Borrowing (although any representations and after giving effect warranties which expressly relate to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was an earlier date shall be required only to be true and correct in all material respects on and (or, with respect to any representation or warranty qualified by materiality or a material adverse change or material adverse effect standard, in all respects) as of such the specified earlier date).
(b) At the time of and immediately after giving effect to such Borrowing, no Default or Event of Default shall have occurred and be continuing.
(c) The Borrower Administrative Agent shall have delivered received a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the The Administrative Agent shall have received evidence reasonably satisfactory to it that all documents and/or invoices showing the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement proposed use of the proceeds of at least 90% of the requested Revolving Loan (all such Borrowingdocuments or invoices to be in form and substance satisfactory to the Administrative Agent), such use of proceeds to be in accordance with Section 5.09.
(e) With respect The Borrower shall have (i) delivered to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably a certificate (in form and substance satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is Administrative Agent) certifying as to (x1) due the Estimated Marketer Receivables Amount as of the date of the proposed Borrowing and payable, (y2) permitted the condition in Section 4.02(f) and (ii) provided the Administrative Agent any reasonably requested information with respect to be prepaid or the calculation of the Marketer Receivables Amount.
(zf) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash The Estimated Marketer Receivables Amount shall exceed the sum of (i) through a direct disbursement the aggregate principal amount of the proceeds of such Borrowing or all outstanding Revolving Loans and (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement aggregate principal amount of the proceeds of such requested Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower and the other Loan Parties on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a), (b) and (bf) of this SectionSection 4.02.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a Loan -------------- on the occasion of any Borrowing is subject to the satisfaction of the following conditions:
(a) The At the time of and immediately after giving effect to such Borrowing, the representations and warranties of the Obligors Loan Parties set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other the Loan Document, or which are contained in any certificate or notice delivered at any time by any Obligor under or in connection herewith or therewith, Documents shall be true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such date.
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower At the time of and immediately after giving effect to such Borrowing, (i) either (A) the aggregate principal amount of all Loans made hereunder (whether or not repaid) shall have delivered not exceed (I) if such time is prior to the second anniversary of the date of this Agreement, [*] of the sum of the aggregate Purchase Price payments made to Ericsson Wireless at or prior to such time, plus [*], and (II) otherwise [*] of the sum of the aggregate ---- Purchase Price payments made to Ericsson Wireless at or prior to such time or (B) the proceeds of such Borrowing are being used solely to pay all or any portion of the Purchase Price theretofore unpaid, (ii) the ratio of Total Indebtedness to Total Contributed Capital shall not exceed 2.0 to 1.0 and (iii) the aggregate principal amount of all Eligible Secured Debt described in clauses (a), (b) and (c) of the definition of "Eligible Secured Debt" that has been incurred (on a Borrowing Request in accordance with Section 2.03cumulative basis, whether or not such Eligible Secured Debt remains outstanding) shall not exceed $1,845,000,000.
(d) With respect In the case of a Borrowing to finance the Purchase Price of any Allocated Existing Indenture Debt assets, a License Subsidiary shall have a valid FCC License for the geographic market in which such assets are to be repaid installed or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemptionoperated. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors Borrower on the date of such Borrowing Request and the date of the Borrowing requested thereunder thereof as to the matters specified in paragraphs (a), (b), (c) and (bd) of this Section.
Appears in 1 contract
Each Borrowing. The obligation of each Lender to make a the Loan to be made by it on the occasion of any each Borrowing Date is subject to the satisfaction of the following conditionsconditions precedent:
(a) The the Administrative Agent shall have received the Notice of Borrowing as provided in Section 2.06 and each Lender shall have received a Promissory Note for such Lender, duly executed and delivered by the Borrower in a principal amount equal to such Lender’s Loan;
(b) each of the representations and warranties made by the Borrower in or pursuant to this Agreement and each of the Obligors set forth in Article III of this Agreement (other than Section 3.04, Section 3.05(a)(i) or (b), or Section 3.09) or any other Loan Document, or which are representations and warranties contained in any certificate or notice delivered furnished at any time by any Obligor under or in connection herewith or therewithon behalf of the Borrower pursuant to this Agreement, shall be true and correct in all material respects (or in all respects to the extent already qualified as to materiality) on and as of such Borrowing Date as if made on and as of such date (both before and immediately after giving effect to the Loans being made on such Borrowing Date and the application of proceeds thereof), except to the extent any of such representations and warranties expressly relate to an earlier date;
(c) no Default or Event of Default shall have occurred and be continuing on such Borrowing Date or immediately after giving effect to the Loans requested to be made on such date; and
(d) payment by the Borrower of all documented fees and expenses of the Administrative Agent or any Lender then due and payable under any Fee Letter or this Agreement, including the payment of all expenses, including the fees, costs and expenses of each party’s legal counsel, then due and payable under such Fee Letter or under Section 9.05(a); All documents submitted hereunder (other than the resolutions (or equivalent corporate actions) of the Board of Directors or Executive Committee delivered pursuant to Section 4.01(c)(i) hereto, the Organizational Documents, the powers of attorney of the Guarantors (including powers of attorney granted in favor of the Process Agent) shall be in English or accompanied by an English translation; provided that, the Administrative Agent’s sole obligation in respect of any documents submitted in a language other than English shall be to make such documents available to the Lenders on the Platform, and the Administrative Agent shall have no duties or obligations in respect of such documents. The giving of a Notice of Borrowing shall constitute a certification by the Borrower to the effect that the conditions set forth in Sections 4.02(b) have been fulfilled (as of the date of such Notice of Borrowing and, unless the Borrower otherwise notifies the Administrative Agent prior to the relevant date of Borrowing, before and after giving effect to such Borrowing, or if any such representation or warranty was made as of a specific date, such representation and warranty was true and correct in all material respects on and as of such dateBorrowing Date).
(b) At the time of and immediately after giving effect to such Borrowing, no Default shall have occurred and be continuing.
(c) The Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) With respect to any Allocated Existing Indenture Debt to be repaid or redeemed with the proceeds of such Borrowing (other than pursuant to a Special Repayment), the Administrative Agent shall have received evidence reasonably satisfactory to it that the conditions to the tender offers commenced for the repurchase or redemption of such Allocated Existing Indenture Debt shall have been satisfied pursuant to the terms of the Repurchase Documentation, in such form as provided to the Administrative Agent on or before the date of this Agreement (and with such subsequent amendments, modifications or waivers as may be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed)), and that all amounts payable to the holders of such Allocated Existing Indenture Debt pursuant to the terms of the Repurchase Documentation have been paid in full or are being paid in full in cash through a direct disbursement of the proceeds of such Borrowing.
(e) With respect to any Borrowing the proceeds of which are being utilized to make a Special Repayment, the Administrative Agent shall have received evidence reasonably satisfactory to it that the Allocated Existing Indenture Debt which is being redeemed or otherwise repaid from such Special Repayment is (x) due and payable, (y) permitted to be prepaid or (z) being irrevocably called for redemption in connection with such Borrowing, and is being paid in cash (i) through a direct disbursement of the proceeds of such Borrowing or (ii) with money irrevocably deposited with the trustee, paying agent or fiscal agent for such Existing Indenture Debt (through a direct disbursement of the proceeds of such Borrowing) for payment of such Existing Indenture Debt upon expiration of the relevant notice period for such redemption. Each Borrowing Request shall be deemed to constitute a representation and warranty by the Obligors on the date of such Borrowing Request and the date of the Borrowing requested thereunder as to the matters specified in paragraphs (a) and (b) of this Section.
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