Each Credit Event. The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions: (a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and (b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 2 contracts
Samples: Credit Agreement (HMS Holdings Corp), Credit Agreement (HMS Holdings Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist; and
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the audited financial statements of the Borrower described in Section 4.4, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. In addition to other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless in each case it is satisfied that all related LC Exposure and Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 2.24(a)(i); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.24(a)(ii), the Borrower Cash Collateralizes its payment and reimbursement obligations with respect to such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) no Default shall have occurred and be continuing, and (ii) no Protective Advance shall be outstanding.
(c) After giving effect to any Revolving Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability is not less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. (a) The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)a Loan, and of the Issuing Lender Banks to issue, amendincrease, renew or extend any Letter of Credit (other than the Letters of Credit issued Credit, on the Effective Date and excluding date of the continuation or conversion consummation of any Borrowing), are additionally the Specified Acquisition (the “Specified Acquisition Closing Date”) is subject solely to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(i) Each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (in the case of the Acquisition Agreement Representations, to the extent required pursuant to the definition thereof) at the time of, and after giving effect to, the making of the Loans on such date.
(ii) The Administrative Agent shall have received a solvency certificate from the Chief Financial Officer of the Company substantially in the form set forth in Exhibit K hereto.
(iii) The Specified Acquisition shall have been consummated substantially concurrently with the making of the Loans on such date, in all material respects in accordance with the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents or waivers, other than those modifications, amendments, supplements, consents or waivers by the Company that are materially adverse to JPMorgan Chase Bank, N.A. in its capacity as arranger and lender in connection with the financing for the Specified Acquisition Transactions (in such capacity, the “Specified Acquisition Arranger”) or the Lenders (in their capacities as such) without the Specified Acquisition Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided that any change in the Merger Consideration (as defined in the Acquisition Agreement) shall not be deemed to be materially adverse to the interests of the Lenders or the Specified Acquisition Arranger and shall not require the consent of the Specified Acquisition Arranger if such change results in the number of shares of Parent Common Stock (as defined in the Acquisition Agreement) for which each share of Company Common Stock (as defined in the Acquisition Agreement), other than any Exception Shares (as defined in the Acquisition Agreement), may be converted pursuant to the Acquisition Agreement increasing or decreasing by 7.5% or less.
(iv) Since January 16, 2019, no event or events shall have occurred that have had or would reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Acquisition Agreement as in effect on January 16, 2019) on First Data.
(v) The Administrative Agent and the Lenders shall have received (A) all fees required to be paid under this Agreement on or prior to the Specified Acquisition Closing Date and, to the extent payable to the Lenders under this Agreement or their Affiliates on or prior to the Specified Acquisition Closing Date, all fees required to be paid pursuant to the terms of the Bridge Facility Fee Letter, dated as of January 16, 2019, by and between the Company and the Specified Acquisition Arranger or the definitive documentation in respect of the Bridge Facility (as such term is used in such Bridge Facility Fee Letter) on or prior to the Specified Acquisition Closing Date, and (B) to the extent invoiced at least three business days prior to the Specified Acquisition Closing Date, expenses required to be paid hereunder on or prior to the Specified Acquisition Closing Date.
(vi) All obligations (other than contingent obligations (including indemnification obligations) that by their terms are to survive the termination of the relevant loan documentation and debt instruments evidencing third party debt) for borrowed money of First Data and its subsidiaries under the instruments set forth on Schedule 4.02(a)(ix) shall have been (or substantially concurrently with the making of the Loans on such date shall be) repaid or satisfied and discharged, and in connection therewith all guarantees and liens shall have been released, on or prior to the Specified Acquisition Closing Date.
(vii) The Administrative Agent shall have received a certificate from a responsible officer of the Company certifying as to the satisfaction of the condition precedent contained in Section 4.02(a)(i) (solely with respect to the Specified Representations), (iii) and (iv).
(b) The obligation of each Lender to make a Loan, and of the Issuing Banks to issue, increase, renew or extend any Letter of Credit, other than on the date of the consummation of the Specified Acquisition, is subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(i) (a) the The representations and warranties of the Borrower Borrowers set forth in Article IVthis Agreement (other than the representations contained in Sections 3.04(a) and, 3.12(b) and of each Loan Party in each of the other Loan Documents to which it is a party, 3.18) 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 Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and) or the date of issuance, amendment to increase, renewal or extension of such Letter of Credit, as applicable.
(ii) (b) at At the time of and immediately after giving effect to such Loan or the issuance, amendmentamendment to increase, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) In the case of a Loan or Letter of Credit denominated in a Foreign Currency or to a Subsidiary Borrower that is not a Domestic Subsidiary, no law or regulation shall prohibit, and no order, judgment or decree of any Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or any Issuing Bank or any Lender from issuing, renewing, extending or increasing the face amount of or participating in the Letter of Credit requested to be issued, renewed, extended or increased. Each Borrowing Loan and each issuance, amendmentamendment to increase, renewal or extension of a Letter of Credit pursuant to this Section 4.02(b) shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (aai) and (bbii) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.204.02(b).
Appears in 1 contract
Samples: Credit Agreement (Fiserv Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (applicable, or, if they are not true and correct, the applicable Administrative Agent and the Required Lenders shall have determined to make any Loan or instruct the Issuing Bank to issue any Letters of Credit, notwithstanding that such representation or warranty is expressly stated to have been made as of a specific date, as of such date); anduntrue or incorrect.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuingcontinuing or, if there then shall be any Default or Event of Default, the applicable Administrative Agent and the Required Lenders shall have determined to make such Borrowing or instruct the Issuing Bank to issue such Letter of Credit notwithstanding such Default or Event of Default.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, (i) US Availability equal or exceed $1.00; (ii) UK Availability equal or exceed $1.00; and (iii) Belgian Availability equal or exceed $1.00; provided that if the condition in clause (c)(i) is satisfied but either conditions in clause (c)(ii) or (c)(iii) is not satisfied, the US Borrowers may request Borrowings, the proceeds of which are used to cure the failure to meet the condition(s) in clauses (c)(ii) or (c)(iii) or both; provided further that such Borrowing is requested not later than two US Business Days after the failure to satisfy such clause (c)(ii) or (iii). Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the each Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Loan Borrowing (other than the Loans made any Borrowing on the Effective Acquisition Funding Date), and any agreement of the any Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) After the Effective Date, the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party(except, the representations and warranties set forth in Section 3.05 and in the last sentence of Section 3.07) shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or Material Adverse Effect, which representation and warranty shall be true and correct in all respects) on and as of (i) the date of such Loan or Borrowing, (ii) the date of issuance, amendment, renewal or extension of such Letter of CreditCredit or (iii) in connection with any initial borrowing of loans with respect to any Limited Condition Transaction Revolving Commitments or initial Borrowings of Incremental Term Loans, in each case of this clause (iii), to fund a Limited Condition Transaction, at the Borrower’s option and unless otherwise specified in the applicable Incremental Facility Amendment, the date a definitive agreement for such Limited Condition Transaction has been entered into, as applicable applicable, in each case of clauses (ori), if any (ii), or (iii), except to the extent such representation or warranty is expressly stated representations and warranties relate specifically to have been made as of a specific another date, as of such date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit (or, in connection with any initial borrowing of loans with respect to any Limited Condition Transaction Revolving Commitments or initial Borrowings of Incremental Term Loans, in each case, to fund a Limited Condition Transaction, at the Borrower’s option and unless otherwise specified in the applicable Incremental Facility Amendment, the date a definitive agreement for such Limited Condition Transaction has been entered into), as applicable, no Default shall have occurred and be continuing.
(c) At the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicablethe Aggregate Outstanding Credit shall not exceed the Aggregate Revolving Commitments. Other than in connection with any initial borrowing of loans with respect to any Limited Condition Transaction Revolving Commitments or initial Borrowings of Incremental Term Loans, no Default shall have occurred in each case, to fund a Limited Condition Transaction and be continuing. Each unless otherwise specified in the applicable Incremental Facility Amendment, each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The Except as expressly set forth in Section 2.18(a), the obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan Borrowing, or the date of issuance, amendment, renewal extension or extension increase of such Letter of Credit, as applicable applicable, except that (ori) for purposes of this Section, if any the representations and warranties contained in Section 3.04(a) shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b) (subject, in the case of unaudited and draft financial statements furnished pursuant to clauses (a) and (b), to year-end audit adjustments and the absence of footnotes), respectively, of Section 5.01, (ii) to the extent that such representation or warranty is expressly stated representations and warranties specifically refer to have been made as of a specific an earlier date, they shall be true and correct in all material respects as of such date); andearlier date and (iii) to the extent that such representations and warranties are already qualified or modified by materiality or words of similar effect in the text thereof, they shall be true and correct in all respects.
(b) at At the time of and immediately after giving effect to such Loan Borrowing, or the issuance, amendment, renewal extension or extension increase of such a Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) The Administration Agent shall have received a Borrowing Request and such other documentation and assurances as shall be reasonably required by it in connection therewith.
(d) The Issuing Banks shall have received all documentation and assurances required under Section 2.19 or otherwise as shall be reasonably required by it in connection therewith. Each Borrowing and each or issuance, amendment, renewal extension or extension increase of a Letter of Credit Credit, as applicable, shall be deemed to constitute a representation and warranty by the Borrower on that the date thereof as to the matters conditions specified in clauses paragraphs (a) and (b) of this Section 4.02 have been satisfied as of the immediately preceding sentencedate thereof. In addition Notwithstanding anything to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remainscontrary herein, a Defaulting Lender conversion of a Borrowing to a different Type or a Potential Defaulting Lender, the Issuing Lender will continuation of a Borrowing shall not be required deemed to issue any Letter constitute a Borrowing for purposes of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.204.02.
Appears in 1 contract
Samples: Revolving Credit Agreement (SoFi Technologies, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) a. to the representations and warranties extent applicable to such Borrowing, receipt by the Administrative Agent of the Borrower set forth in Article IVa Borrowing Request pursuant to Section 2.03 or, and if applicable, a request for a Letter of each Loan Party in each of the other Loan Documents Credit pursuant to which it is a party, shall be true and correct on and as of the date of Section 2.05(b);
b. immediately after such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, (ori) the Revolving Credit Exposure will not exceed the Available Commitment, if (ii) with respect to each Lender, such Lender’s Applicable Percentage of the Revolving Credit Exposure will not exceed such Lender’s Revolving Credit Commitment and (iii) the sum of the outstanding amount of the Term Loans and the Revolving Credit Exposure will not exceed the Available Commitment;
(i) the representations and warranties of any Borrower Party set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the date of such representation Borrowing or warranty is expressly stated the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable; provided, that to have been the extent such representations and warranties were made as of a specific date, the same shall have been true and correct in all material respects as of such specific date and (ii) there are no material adverse changes to its financial condition since the date of delivery of the financial information most recently delivered by the Borrower pursuant to Sections 5.01(a) or (c) that would cause such Borrower Party to be in breach of its obligations pursuant to Section 6.12 as if such obligations were tested as of such date); and;
(b) d. at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing; provided, however, so long as no Default that could, with the passage of time, become an Event of Default pursuant to Section 7.01(a), (g) or (h) shall exist, this clause (d) shall not prevent the conversion or continuation of existing Loans, but provided further that any Eurodollar Loan during such period shall be allowed only in one-month Interest Periods;
e. no law or regulation shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued, and no litigation shall be pending or threatened, which does or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain, the making or repayment of the Loans, the issuance of any Letters of Credit or any participations therein or the consummation of the transactions contemplated by this Agreement;
f. receipt by Administrative Agent of a Compliance Certificate, dated as of such date and signed by a Financial Officer of Borrower, demonstrating compliance with the Financial Covenants determined on a pro-forma basis on such date after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, together with customary supporting documentation and supplemental reporting as agreed upon between the Administrative Agent and Borrower;
g. receipt by Administrative Agent of a completed Borrowing Base Certificate, setting forth all of the information and certifications required pursuant to Section 5.01(f), dated as of such date;
h. no event which results in a Material Adverse Effect shall have occurred, as reasonably determined by the Administrative Agent; and
i. the Administrative Agent shall have received, for its and any other Lender’s account, all fees due and expenses, including the reasonable fees and expenses of Xxxxxxxx & Xxxxxxxx LLP, then due and payable pursuant to the terms of the Loan Documents. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Parties on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Each Credit Event. The obligation of each Lender to make any Loan (other than the Term Loans made on the Effective Borrowing Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, and of each made by any Loan Party in each of or pursuant to the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan or Borrowing Date (except to the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if extent any such representation or warranty is expressly stated to have been made speaks only as of a specific previous date, in which case it was true and correct in all material respects on and as of such date); andprovided, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(b) at At the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension incurrence of such Letter of Credit, as applicablethe Term Loans, no Default shall have occurred and be continuing. Each Borrowing .
(c) The Administrative Agent and each issuanceLender shall have received all fees and other amounts due and payable to the Administrative Agent and such Lender, amendmentrespectively, renewal on or extension prior to the Borrowing Date, including, (i) all Commitment Fees required to be paid pursuant to Section 2.11(b) and (ii) to the extent invoiced a reasonable time prior to the Borrowing Date, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent required to be reimbursed or paid by the Borrower hereunder.
(d) On the Borrowing Date, (i) no litigation shall be pending or threatened in writing with respect to this Agreement, any other Loan Document or the Transactions and (ii) except for the Disclosed Matters, since December 31, 2012, no litigation shall be pending or threatened in writing which has had, or could reasonably be expected to result in, a Letter Material Adverse Effect.
(e) No event, development or circumstance shall have occurred since December 31, 2012 that has had, or could reasonably be expected to result in, a Material Adverse Effect. The incurrence of Credit Term Loans and the occurrence of the Borrowing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses Sections 4.02(a), (ab) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20c).
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all Material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not be less than zero.
(d) No event shall have occurred and no condition shall exist which has or could be reasonably expected to have a Material Adverse Effect. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower BorrowerBorrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b), (c) and (bd) of this Section. Notwithstanding the immediately preceding sentence. In addition failure to satisfy the other conditions precedent herein set forthforth in paragraphs (a), if any Revolving Credit Lender becomes(b), and during (c) or (d) of this Section, unless otherwise directed by the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (CRH Medical Corp)
Each Credit Event. The obligation of each Lender the Agent (on behalf of the Lenders) to make any Loan (other than the Loans made on the Effective Date), and of the Issuing Lender or CIT to issue, amend, renew or extend any provide a Letter of Credit (other than the Letters of Credit issued Guarantee on the Effective Date and excluding the continuation or conversion occasion of any Borrowing, (including on the occasions of the initial Borrowings hereunder), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower each Credit Party set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of each such Loan or Borrowing (including the date of issuance, amendment, renewal or extension of such a Letter of Credit Guarantee or Letters of Credit, as applicable) as if made on such date (except where such representation or warranty refers to a different date). With respect to any such representations and warranties that do not relate solely to the Effective Date or any other specific earlier date, the Credit Parties may supplement each such representation or warranty and/or any applicable (orschedule herein or in any other Loan Document, if with respect to any matter hereafter arising that would have been required to be set forth as an exception to such representation or warranty and/or any applicable schedule or that is necessary to correct any such representation or warranty is expressly stated and/or any applicable schedule which has been rendered inaccurate thereby; provided that no such supplement to have been made any such representation or warranty and/or any applicable schedule shall amend, supplement or otherwise modify any representation or warranty and/or any applicable schedule, or be or be deemed a waiver of any Default or Event of Default resulting from the matters disclosed therein, except as of a specific date, as of such date); andconsented to by the Agent and the Required Lenders in writing;
(b) at the time of and immediately after giving effect to such Loan or Borrowing (including the issuance, amendment, renewal or extension of such Letter of Credit, as applicable), no Default or Event of Default shall have occurred and be continuing;
(c) the Agent shall have received a Canadian Borrowing Request or U.S. Borrowing Request, as applicable, in the manner and within the time period required by Section 2.3;
(d) after giving effect to the extension of credit requested to be made by a Borrower on such date (i) the aggregate Exposure will not exceed the lesser of (a) the Commitments, or (b) an amount equal to the Borrowing Base, and (ii) Excess Availability shall not be less than $35,000,000; and
(e) the Borrowing shall not violate any Applicable Law on such date. Each Borrowing and Borrowing, including each issuance, amendment, renewal or extension of a Letter of Credit Guarantee or a Letter of Credit, shall be deemed to constitute a representation and warranty by the applicable Borrower on the date thereof as to the accuracy of the matters specified in clauses paragraphs (a), (b) and (bd) above. This requirement does not apply on the conversion or rollover of an existing Borrowing provided that the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender aggregate outstanding Borrowings will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, increased as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20consequence thereof.
Appears in 1 contract
Each Credit Event. The obligation of each Lender an Issuing Bank to make any Loan (other than the Loans made on the Effective Date), and of the Issuing Lender to issue, amend, renew or extend any issue a Letter of Credit (other than the Letters or to issue any amendment of a Letter of Credit issued having the effect of extending the stated expiration date thereof, increasing the amount available for drawing thereunder or otherwise altering any of the material terms or conditions thereof), and the obligation of each Revolving Lender to make a Revolving Loan on the Effective Date and excluding the continuation or conversion occasion of any Borrowing)Borrowing that increases the amount of the Revolving Loans of any Revolving Lender outstanding, are additionally shall be subject to the satisfaction of the following conditions:
(a) the The Administrative Agent shall have received a Borrowing Request with respect to any such Borrowing.
(b) The representations and warranties of the Borrower set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents (other than, with respect to which it is a partyany such issuance or Borrowing made after the Effective Date, the representations and warranties set forth in Sections 3.04(b), 3.06(a)(i) and 3.06(c)) shall be true and correct on and as of the date of such Loan issuance or the date of issuance, amendment, renewal or extension of such Letter of CreditBorrowing, as applicable the case may be, both before and after giving effect thereto and (orin the case of any Borrowing) to the application of the proceeds thereof, if any such representation or warranty is expressly stated to have been as though made as of a specific date, on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct as of such earlier date); and.
(bc) at At the time of and immediately after giving effect to such Loan issuance or Borrowing (as the issuance, amendment, renewal or extension of such Letter of Credit, as applicablecase may be), no Default or Event of Default shall have occurred and be continuing. .
(d) Each Revolving Borrowing and each issuance, amendment, renewal or extension issuance of a Letter of Credit (or any amendment of a Letter of Credit having the effect of extending the stated expiration date thereof, increasing the amount available for drawing thereunder or otherwise altering any of the material terms or conditions thereof) shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (ab) and (bc) of this Section.
(e) In connection with the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, issuance or replacement of a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Revenue Bond Letter of Credit after the Effective Date, (i) the Borrower, the applicable Issuing Bank and, if necessary (as determined by the Administrative Agent based upon the terms of the applicable Revenue Bond Indenture), the applicable Revenue Bond Trustee (or other agent or custodian) shall have executed and delivered to amend any outstanding the Administrative Agent a Revenue Bond Pledge Agreement, (ii) the Administrative Agent shall have received all other documents and instruments required by law or reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under such Revenue Bond Pledge Agreement, (iii) all other conditions to the issuance of such Revenue Bond Letter of Credit set forth in the applicable Revenue Bond Indenture and Revenue Bond Loan Agreement shall have been satisfied (or waived in accordance with the terms thereof), and (iv) the Administrative Agent shall have received copies of the applicable Revenue Bond Indenture, the applicable Revenue Bond Loan Agreement and all related agreements with respect to the applicable Revenue Bonds, in each case together with all amendments and supplements thereto, certified by an Authorized Officer as being true, correct and complete copies thereof and in full force and effect on the date of issuance of such Revenue Bond Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, other than representations or warranties which relate to an earlier date, in which case such representations and warranties shall have occurred been true and be continuingcorrect on such earlier date;
(c) the applicable Borrower shall have delivered the required Notice of US Revolving Borrowing or Notice of Canadian Prime Rate Borrowing; and
(d) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentencethis Section 5.2. In addition to the other conditions precedent herein set forth, if any Revolving Credit US Lender becomes, and during the period it remains, is a Defaulting Lender at the time of and immediately after giving effect to such Borrowing or a Potential Defaulting Lenderthe issuance, the Issuing Lender will not be required to issue any Letter amendment, renewal or extension of Credit or to amend any outstanding such Letter of Credit, as applicable, set forth in this Section 5.2, no US Issuing Bank will be required to issue, amend or increase any US Letter of Credit and the Swingline Lender will not be required to make any Swingline LoanLoans, unless they are satisfied that 100% of the related US LC Exposure and Swingline Exposure is fully covered or eliminated by any combination satisfactory to the relevant US Issuing Lender Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the US LC Exposure and Swingline Exposure of such Defaulting Lender is satisfied reallocated, as to outstanding and future US Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 4.19(a)(1) above; and
(ii) in the case of a Defaulting Lender, without limiting the provisions of Section 4.19(a)(2), the US Borrowers Cash Collateralize their reimbursement obligations in respect of such US Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the US Borrowers make other arrangements satisfactory to the Administrative Agent, the US Issuing Banks and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender;
(iii) in the case of a Defaulting Lender, the US Borrowers agree that any exposure that the face amount of such requested US Letter of Credit or the principal amount of such requested Swingline Loan will be reduced by an amount equal to the unreallocated, non-Cash Collateralized portion thereof as to which such Defaulting Lender would result therefrom is eliminated otherwise be liable, in which case the obligations of the Non-Defaulting Lenders in respect of such US Letter of Credit or fully covered by such Swingline Loan will, subject to the limitation in the proviso below, be on a pro rata basis in accordance with the Revolving Commitments of the Non-Defaulting Lenders or Lenders, and the pro rata payment provisions of Section 4.15 will be deemed adjusted to reflect this provision; provided that the sum of each Non-Defaulting Lender’s total US Revolving Credit Exposure may not in any event exceed the US Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reduction provided, however that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed its Revolving Commitment, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a combination thereof satisfactory to waiver or release of any claim the Issuer or US Borrowers, the Administrative Agent, any US Issuing Bank, the Swingline Lender in its sole discretionor any other US Lender may have against such Defaulting Lender, in each case, in accordance with Section 2.20or cause such Defaulting Lender to be a Non-Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Macquarie Infrastructure CO LLC)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, party shall be true and correct in all material respects (other than representations and warranties that are subject to a Material Adverse Effect or 4156-0326-0209 a materiality qualifier, in which case such representations and warranties shall be true and correct) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (orother than representations and warranties that were subject to a Material Adverse Effect or a materiality qualifier, if any in which case such representation or warranty is expressly stated to representations and warranties shall have been made as of a specific date, true and correct) in each case as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) With respect to the issuance of any Letter of Credit or the making of any Swingline Loan, there is no Defaulting Lender at the time such Swingline Loan is to be made or Letter of Credit is to be issued, unless the L/C Exposure or Swingline Exposure of such Defaulting Lender is re-allocated to non-Defaulting Lenders and/or the Borrower has Cash Collateralized or made other arrangements with respect to any such non-reallocated Exposure of such Defaulting Lender all in accordance with Section 2.22
(d) With respect to the making of any Term Loan, the Administrative Agent shall have received (i) evidence satisfactory to it that (A) the Borrower has repurchased, has irrevocably tendered for and repurchased, or concurrently with the making of such Term Loans will irrevocably accept tenders of and repurchase, a portion of each or any of the Applicable Senior Notes and pay for accrued interest and premium thereon, provided that the principal amount of the Term Loans requested or made shall not exceed the actual purchase price (including as a result of any discount to par), accrued interest and premium thereon of the Applicable Senior Notes repurchased or to be repurchased, and (B) upon such repurchase, the original principal amount of the Applicable Senior Notes so repurchased will no longer be due or owing under the relevant Senior Notes documentation, and (ii) a certificate from an authorized officer of the Borrower representing to the accuracy of the foregoing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by STX and the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of this Section 4.02. For purposes of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lenderforegoing, the Issuing Lender will term “Borrowing” shall not be required to issue any Letter include the continuation or conversion of Credit or to amend any outstanding Letter Loans in which the aggregate amount of Credit, and the Swingline Lender will such Loans is not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20being increased.
Appears in 1 contract
Samples: Fifth Amendment and Joinder Agreement (Seagate Technology Holdings PLC)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, party shall be true and correct in all material respects (other than representations and warranties that are subject to a Material Adverse Effect or a materiality qualifier, in which case such representations and warranties shall be true and correct) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, except to the extent such 4144-2392-2490 representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (orother than representations and warranties that were subject to a Material Adverse Effect or a materiality qualifier, if any in which case such representation or warranty is expressly stated to representations and warranties shall have been made as of a specific date, true and correct) in each case as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) With respect to the issuance of any Letter of Credit or the making of any Swingline Loan, there is no Defaulting Lender at the time such Swingline Loan is to be made or Letter of Credit is to be issued, unless the L/C Exposure or Swingline Exposure of such Defaulting Lender is re-allocated to non-Defaulting Lenders and/or the Borrower has Cash Collateralized or made other arrangements with respect to any such non-reallocated Exposure of such Defaulting Lender all in accordance with Section 2.22. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by STX and the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of this Section 4.02. For purposes of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lenderforegoing, the Issuing Lender will term “Borrowing” shall not be required to issue any Letter include the continuation or conversion of Credit or to amend any outstanding Letter Loans in which the aggregate amount of Credit, and the Swingline Lender will such Loans is not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20being increased.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)Loan, and of the each Issuing Lender to issue, amendamend (if increasing the amount thereof), renew (other than automatic renewals of any Auto-Renewal Letter of Credit) or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are is additionally subject to the receipt of a request therefor in accordance herewith and the satisfaction of the following conditions:
: (a) the Administrative Agent shall have received a Borrowing Request as required by Article II; (b) the representations and warranties of the Parent Borrower set forth in Article IVthis Agreement (other than, after the Effective Date, those set forth in Sections 4.04(b) and of each Loan Party in each of the other Loan Documents to which it is a party, 4.06(a)) shall be true and correct in all material respects on and as of the date of such Loan or the date of such issuance, amendment, renewal or extension of such Letter of Creditextension, as applicable applicable; and (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(bc) at the time of and immediately after giving effect to such Loan or the such issuance, amendment, renewal or extension of such Letter of Credit, as applicableextension, no Default or Event of Default shall have occurred and be continuing. Each Borrowing and each issuance, amendmentamendment (if increasing the amount thereof), renewal (other than automatic renewals of any Auto-Renewal Letter of Credit) or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Parent Borrower on the date thereof that the conditions specified in the preceding sentence have been satisfied. ARTICLE VI Affirmative Covenants Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees payable hereunder shall have been paid in full, and all Letters of Credit shall have expired or terminated (or have been cash collateralized or backstopped on terms reasonably satisfactory to each applicable Issuing Lender) and all LC Disbursements shall have been reimbursed, each Obligor (as applicable) covenants and agrees with the Lenders that: SECTION 6.01. Financial Statements, Rating Changes and Other Information. The Parent Borrower will furnish to the Administrative Agent and each Lender (through the Administrative Agent): (a) as soon as available and in any event within 90 days after the end of each fiscal year of the Parent Borrower, the audited consolidated balance sheet and related statements of earnings, shareholders’ equity and cash flows of the Parent Borrower and its Subsidiaries (together with an unaudited reconciliation, reflecting total assets, Inventory, capital expenditures and cash for the Parent Borrower and its Restricted Subsidiaries, on the one hand, and the Unrestricted Subsidiaries, on the other hand) as of the end of and for such year, setting forth in each case in comparative form the figures for the previous fiscal year, all reported on by KPMG LLP or another independent registered public accounting firm of recognized national sta nding (without a “going concern” or like qualification or exception and without any qualification or exception as to the matters specified scope of such audit) to the effect that such consolidated financial statements present fairly, in clauses (a) all material respects, the financial condition and results of operations and cash flows of the Parent Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP; (b) as soon as available and in any event within 45 days after the end of each of the immediately preceding sentence. In addition to first three fiscal quarters of each fiscal year of the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderParent Borrower, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, consolidated balance sheet and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.related -56-
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(c) since June 30, 2016, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing;
(e) if a request is made by the Borrower for the issuance of a Letter of Credit, the Administrative Agent shall have received such other documents, certificates or information as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or Required Lenders; provided that any such additional documents, certificates or information may be required only if the circumstances reasonably support such request by the Administrative Agent or Required Lenders, as applicable; and
(f) if any Revolving Lender is a Defaulting Lender at the time of any request by the Borrower of a Borrowing of a Swingline Loan or the issuance, amendment, renewal or extension of a Letter of Credit, as applicable, set forth in this Section 3.3, the Issuing Bank will not be required to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless they are satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated pursuant to Section 2.26. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.3.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, Document shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if except to the extent any such representation or warranty is expressly stated to relate solely to an earlier date, in which case such representation or warranty shall have been made as of a specific date, true and correct in all material respects on and as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) No law or regulation shall prohibit, and no order, judgment or decree of any Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or any Issuing Bank or Lender from issuing, renewing, extending or increasing the face amount of or participating in the Letter of Credit requested to be issued, renewed, extended or increased.
(d) To the extent that the Company has requested a Borrowing or the issuance of a Letter of Credit which would utilize all or any portion of the Existing Revolver Reserve Amount (other than any request for a Borrowing in respect of Permitted Interim Loans, which shall be subject to Section 4.02(h) below), the following further conditions precedent must be satisfied (or waived by the Supermajority Lenders):
(i) the Amendment No. 12 Effective Date shall have occurred;
(ii) no unused Revolving Commitments exist (other than in respect of the Existing Revolver Reserve Amount and the New Revolver Reserve Amount) and there are no amounts available for drawing under the Yellow Receivables Facility as of such date;
(iii) after giving effect to such request Unrestricted Cash shall be less than or equal to $125,000,000; and
(iv) either (x) subject to the proviso immediately following this clause (iv)
(1) Weekly Operating EBITDA set forth on the most recent Weekly Operating EBITDA Report required to be delivered pursuant to Section 5.01A(a) shall be equal to or greater than the amount set forth opposite the relevant date on Part 1 of Schedule 4.02(d) attached hereto (such compliance to be demonstrated and certified to by a Financial Officer of the Company to the Administrative Agent as of the date of any such Borrowing Request in a form reasonably acceptable to the Administrative Agent), (2) the SG&A (Monthly) set forth on the most recent SG&A (Monthly) Expense Report required to be delivered pursuant to Section 5.01(n) shall be less than the amount set forth opposite the relevant date on Part 2 of Schedule 4.02(d) attached hereto (such compliance to be demonstrated and certified to by a Financial Officer of the Company to the Administrative Agent as of the date of any such Borrowing Request in a form reasonably acceptable to the Administrative Agent), (3) the Recapitalization Transaction shall have been consummated and (4) the Specified Pension Fund Deferral Transaction Amendment shall be fully executed and effective or (y) the Supermajority Lenders shall have consented to the Borrowing or issuance of a Letter of Credit with respect to such Existing Revolver Reserve Amount by the Company; ; provided that, if at any time, the Adjusted Weekly Operating EBITDA set forth in the Adjusted Weekly Operating EBITDA Report required to be delivered pursuant to Section 5.01A(b) is less than (x) the amount set forth opposite the relevant date on Part 1 of Schedule 4.02(d) attached hereto minus (y) $5,000,000, and the Lenders made any Loans or any Issuing Bank issued a Letter of Credit to the Company which utilized all or any portion of the Existing Revolver Reserve Amount (other than any Borrowing in respect of Permitted Interim Loans) in reliance on the Company having satisfied the conditions set forth in Section 4.02(d)(iv)(x) above, then, from and after the date of delivery of the Adjusted Weekly Operating EBITDA Report reflecting any such deficit, the Company may not request any Loans or the issuance of any Letter of Credit (and the Lenders shall be under no obligation to so lend and the Issuing Banks shall be under no obligation to so issue) which would utilize any all or any portion of the Existing Revolver Reserve Amount (other than any Borrowing in respect of Permitted Interim Loans) regardless of whether the Company has satisfied the conditions set forth in Section 4.02(d)(iv)(x) above unless and until the Supermajority Lenders have consented to the Company being permitted to once again gain access to such Loans or Letters of Credit by satisfying such conditions.
(e) To the extent that the Company has requested a Borrowing or the issuance of a Letter of Credit which would utilize all or any portion of the New Revolver Reserve Amount, the following further conditions precedent must be satisfied (or waived by the Supermajority Lenders):
(i) the Amendment No. 12 Effective Date shall have occurred;
(ii) no unused Revolving Commitments exist (other than in respect of the New Revolver Reserve Amount) and there are no amounts available for drawing under the Yellow Receivables Facility as of such date;
(iii) after giving effect to such request Unrestricted Cash shall be less than or equal to $125,000,000;
(iv) the Recapitalization Transaction shall have been consummated;
(v) the Specified Pension Fund Deferral Transaction Amendment shall be fully executed and effective; and
(vi) the Supermajority Lenders shall have consented to the Borrowing or issuance of a Letter of Credit with respect to such New Revolver Reserve Amount by the Company.
(f) The Company has delivered to the Administrative Agent a certificate of a Financial Officer certifying that, as of the date of such certificate (which date shall be the date of request for such Borrowing or Letter of Credit), (i) the Company and its Domestic Subsidiaries (other than any Receivables Entity), collectively, have less than $125,000,000 (or, to the extent that any Permitted Interim Loans are outstanding as of the date of such certificate, $100,000,000) in Unrestricted Cash and providing a demonstration of such deficit (the amount of such deficit, the “Credit Event Liquidity Deficit Amount”) reasonably satisfactory to the Administrative Agent and (ii) the amount of such requested Borrowing or Letter of Credit is equal to or less than the Credit Event Liquidity Deficit Amount.
(g) The Company has delivered to the Administrative Agent a certificate of a Financial Officer certifying the Aggregate Revolver Reserve Amount as of the date of such certificate (which date shall be the date of request for such Borrowing or Letter of Credit).
(h) To the extent that the Company has requested a Borrowing in respect of Permitted Interim Loans, (i) the Administrative Agent shall have received evidence reasonably satisfactory to it that as of such date (x) there is no unused availability under the Revolving Commitments other than amounts comprising the Aggregate Revolver Reserve Amount and (y) there are no amounts available for drawing under the Yellow Receivables Facility as of such date and (ii) the Company shall have delivered to the Administrative Agent a Borrowing Request substantially in the form of Exhibit F hereto (which Borrowing Request shall include a certification by a Financial Officer and the Designated Officer certifying the Interim Loan Availability as of the Business Day immediately prior to the date of such Borrowing Request and calculations reasonably demonstrating the Interim Loan Availability). Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Yrc Worldwide Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, the aggregate Credit Exposures shall not exceed the lesser of (x) the aggregate Revolving Commitments or (y) (other than in the case of a Protective Advance or an Overadvance) the Borrowing Base, and the Administrative Agent shall have received a Borrowing Base Certificate as of a date not earlier than the last day of the most recent fiscal month ended at least 20 days prior to the date of such Borrowing or issuance. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue or cause to be required to issue issued any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or issuing or causing to amend be issued any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not be less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) and (c) of this Section. Notwithstanding the immediately preceding sentence. In addition failure to satisfy the other conditions precedent herein set forthforth in paragraphs (a) or (b) or (c) of this Section, if any Revolving Credit Lender becomes, and during unless otherwise directed by the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of the Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality qualifier, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the financial statements of Borrower described in Section 4.4, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) Borrower shall have delivered the required Notice of Borrowing; and
(e) Administrative Agent shall have received such other documents, certificates, information or legal opinions as Administrative Agent or the Required Lenders may reasonably request, all in form and be continuingsubstance reasonably satisfactory to Administrative Agent or the Required Lenders. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentencethis Section 3.2. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, is a Defaulting Lender at the time of and immediately after giving effect to such Borrowing or a Potential Defaulting Lenderthe issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Lender Bank will not be required to issue any Letter of Credit or to extend, renew or amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, Bank is satisfied that any exposure that would result therefrom is eliminated or fully covered or eliminated by Borrower Cash Collateralizing the Commitments obligations of Borrower in respect of such Letter of Credit in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit, or makes other arrangements satisfactory to Administrative Agent and the Issuing Bank in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; provided that no such Cash Collateralization will constitute a waiver or release of any claim Borrower, Administrative Agent, the Issuing Bank or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lender.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, except for (i) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, (ii) representations and warranties effective as of a specified date, which shall remain true and correct as of such specified date, and (iii) changes in facts and circumstances that are not prohibited by the terms of this Agreement;
(c) since December 31, 2011, there shall have occurred been no change that has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and be continuingsubstance reasonably satisfactory to the Administrative Agent or the Required Lenders. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses subsections (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable in all material respects (or, if any such representation or warranty is expressly stated to have been made already qualified by materiality or material effect, then such representation or warranty shall be true and correct in all respects taking into account such qualification) on and as of a specific the date of such Loan (except that if any such representation and warranty expressly relates to an earlier date, then such representation and warranty shall be true and correct in all material respects as of such dateearlier date (or, if any such representation or warranty is already qualified by materiality or material effect, then such representation or warranty shall be true and correct in all respects as of such earlier date taking into account such qualification); and), as applicable;
(b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicableLoan, no Default and no Event of Default shall have occurred and be continuing;
(c) the Loans being requested will be used for an Approved Purpose; and
(d) Administrative Agent shall have received (i) a duly completed Property Worksheet dated as of the date of delivery of the applicable Borrowing Request, (ii) a supplement to the then most recent Compliance Certificate delivered to the Administrative Agent pursuant to this Agreement, which supplement shall reasonably demonstrate, on a pro forma basis, compliance with the financial covenants set forth in Section 6.07 and shall be executed by a Financial Officer and dated as of the date of delivery of the applicable Borrowing Request and (iii) a duly completed Borrowing Base Certificate dated as of the date of delivery of the applicable Borrowing Request and based on then most recent Borrowing Base Certificate delivered to the Administrative Agent pursuant to this Agreement, but updated if and to the extent required to reflect acquisitions and dispositions of Real Properties (including any acquisition to be made with the proceeds of such Loan) and any Loans made (including the Loan to be made contemporaneously with the delivery of such certificate) since such Borrowing Base Certificate was delivered, which updates shall be shown in the Property Worksheet. Each Borrowing and each issuance, amendment, renewal or extension making of a Letter of Credit Loan shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, (i) no Lender’s Revolving Credit Exposure shall exceed such Lender’s Revolving Commitment, and (ii) the total Revolving Credit Exposures shall not exceed the amount equal to: (A) the lesser of the total Revolving Commitments and the Aggregate Borrowing Base minus (B) the Availability Block minus (C) the Pension Reserve. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue or cause to be required to issue issued any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or issuing or causing to amend be issued any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (A. H. Belo CORP)
Each Credit Event. The obligation of each Lender to make any Loan (other than the Term Loans made on the Effective Initial Borrowing Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, and of each made by any Loan Party in each of or pursuant to the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan or Initial Borrowing Date (except to the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if extent any such representation or warranty is expressly stated to have been made speaks only as of a specific previous date, in which case it was true and correct in all material respects on and as of such date); andprovided, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such respective dates.
(b) at At the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension incurrence of such Letter of Credit, as applicablethe Term Loans, no Default shall have occurred and be continuing. Each Borrowing .
(c) The Administrative Agent and each issuanceLender shall have received all fees and other amounts due and payable to the Administrative Agent and such Lender, amendmentrespectively, renewal on or extension prior to the Initial Borrowing Date, including, (i) all Commitment Fees required to be paid pursuant to Section 2.11(b) and (ii) to the extent invoiced a reasonable time prior to the Initial Borrowing Date, reimbursement or payment of all out-of-pocket expenses of the Administrative Agent required to be reimbursed or paid by the Borrower hereunder.
(d) On the Initial Borrowing Date, (i) no litigation shall be pending or threatened in writing with respect to this Agreement, any other Loan Document or the Transactions and (ii) except for the Disclosed Matters, since December 31, 2011, no litigation shall be pending or threatened in writing which has had, or could reasonably be expected to result in, a Letter Material Adverse Effect.
(e) No event, development or circumstance shall have occurred since December 31, 2011 that has had, or could reasonably be expected to result in, a Material Adverse Effect. The incurrence of Credit Term Loans and the occurrence of the Initial Borrowing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses Sections 4.02(a), (ab) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20c).
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist; and
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the audited financial statements of the Borrower described in Section 4.4, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. In addition to other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless in each case it is satisfied that all related LC Exposure and Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 2.24(a)(i); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.24(a)(ii), the Borrower Cash Collateralizes its payment and reimbursement obligations with respect to such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The Issuer’s obligation of each Lender to make any Loan (other than the Loans made on the Effective Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally hereunder is subject to the satisfaction of the following conditions:
(ai) Issuer shall have received a signed and completed application for such Credit substantially in the form attached hereto and otherwise in form and substance reasonably satisfactory to it;
(ii) [Reserved];
(iii) Such Credit, or proposed amendment, shall be in form and substance reasonably satisfactory to Issuer and, with respect to any issuance of a Credit, such Credit may include a statement to the effect that it is being issued to replace an existing letter of credit;
(iv) Issuer shall have received payment of all fees contemplated hereby in connection with any such issuance, amendment, renewal or extension;
(v) At the time of and immediately after giving effect to the issuance, amendment, renewal or extension of such Credit, the total Letter of Credit Exposure will not exceed the Maximum Commitment Amount;
(vi) No Default shall have occurred and be continuing immediately before or after giving effect to the issuance, amendment, renewal or extension of such Credit;
(vii) The representations and warranties of the Borrower set forth Applicant contained in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of both before and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, other than any such representation or warranty that, by its terms, refers to a specific date other than the date of such issuance, amendment, renewal or extension, in which case as applicableof such specific date;
(viii) No Change in Law shall have occurred, no Default order, judgment or decree of any Governmental Authority shall have occurred been issued, and no litigation shall be continuing. Each Borrowing and each pending or threatened, which enjoins, prohibits or restrains (or with respect to any litigation seeks to enjoin, prohibit or restrain), the reimbursement of Issuer contemplated hereunder, the issuance of any Credit, or the consummation of any of the other transactions contemplated hereby or the use of proceeds of the Credit permitted hereunder;
(ix) [Reserved];
(x) Issuer, in its sole discretion, shall have determined that the issuance of such Credit does not negatively impact the group sustainability principles or reputation of the Issuer;
(xi) Issuer, in its sole discretion, shall have determined that the issuance of such Credit shall not cause any negative compliance implications or resulting sanctions to be brought upon Issuer;
(xii) Such Credit shall be issued during the Commitment Period; and
(xiii) After giving effect to the issuance, amendment, renewal or extension of a Letter of such Credit, such Credit shall be deemed to constitute a representation and warranty by not have an expiration date occurring after the Borrower on earlier of (A) one year after the date thereof as to the matters specified in clauses (a) of such issuance, amendment, renewal or extension and (bB) of the immediately preceding sentence. In addition to the other conditions precedent herein set forthScheduled Termination Date, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied provided that any exposure that would result therefrom is eliminated or fully covered by Credit with a one-year tenor may provide for the Commitments of extension thereof for additional one-year periods (which shall in no event extend beyond the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.Scheduled Termination Date),
Appears in 1 contract
Samples: Continuing Agreement for Standby Letters of Credit and Demand Guarantees (Sunpower Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(c) since December 31, 2009, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrowers shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent. In addition to other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless in each case it is satisfied that all related LC Exposure and Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 2.23(a)(i); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.23(a)(ii), the Borrowers Cash Collateralize their payment and reimbursement obligations with respect to such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrowers make other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrowers, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents qualified as to which it is a party, materiality shall be true and correct and those not so qualified shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if any except to the extent such representation or warranty is representations and warranties expressly stated relate to have been made as of a specific date, an earlier date in which case such representations and warranties shall be true and correct as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) At the time of, and after giving effect to, such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, (i) the total Domestic Revolving Exposure shall not exceed the lesser of (A) the total amount of the Available Commitments and (B) the Domestic Borrowing Base then in effect, (ii) the total Australian Revolving Exposure shall not exceed the lesser of (A) the Australian Sublimit and (B) the Australian Borrowing Base then in effect, (iii) the total Canadian Revolving Exposure shall not exceed the Canadian Sublimit and the Canadian Revolving Exposure with respect to each Canadian Subsidiary Borrower shall not exceed such Canadian Subsidiary Borrower’s Canadian Borrowing Base then in effect, (iv) the total German Revolving Exposure shall not exceed the lesser of (A) the German Sublimit and (B) the German Borrowing Base then in effect, (v) the total Mexican Revolving Exposure shall not exceed the lesser of (A) the Mexican Sublimit and (B) the Mexican Borrowing Base then in effect, (vi) the total Revolving Exposure shall not exceed the total amount of the Available Commitments then in effect and (vii) the total Revolving Exposure plus the total Fixed Asset Revolving Exposure shall not exceed the total amount of the Commitments at such time.
(d) If at the time of, and after giving effect to, such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, the total Revolving Exposure and Fixed Asset Revolving Exposure exceeds 85% of the maximum amount of Indebtedness permitted to be incurred under this Agreement and the Fixed Asset Credit Agreement pursuant to the Senior First Lien Indenture, the Senior Second Lien Note Indenture and the Senior Subordinated Note Indenture, the Administrative Agent shall have received a Compliance Certificate signed by a Financial Officer and the chief legal officer of the Parent Borrower, dated the date of such Borrowing, or the issuance, amendment, renewal or extension of such Letter of Credit (delivered, and containing a statement that it was delivered, in good faith after reasonable investigation) to the effect that such Borrowing, or the issuance, amendment, renewal or extension of such Letter of Credit, does not violate the provisions of the Senior First Lien Note Indenture, the Senior Second Lien Note Indenture and the Senior Subordinated Note Indenture (including a reasonably detailed summary as to the calculations necessary to determine the absence of any such violation).
(e) With respect to any Borrowing of Foreign Revolving Loans (other than Borrowings of Canadian Revolving Loans by Uniplast Canada), at the time of the Borrowing Request with respect to such Borrowing, the amount that the Parent Borrower reasonably and in good faith estimates will be the Cash Amount at 3:00 p.m., New York City time, on the requested date of such Borrowing (after giving effect to such Borrowing) shall not exceed $11,000,000, and such Borrowing Request shall contain a statement to that effect and that the Parent Borrower reasonably and in good faith expects to be in compliance with Section 6.14 as of the date of such Borrowing.
(f) The making of such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, does not violate any applicable law or regulation and is not enjoined, temporarily, preliminarily or permanently. Each The making of any Loan on the occasion of each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Parent Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Working Capital Credit Agreement (Pliant Corpororation)
Each Credit Event. The obligation of each Lender to make any Loan Credit Extension to any Borrower (other than including the Loans made Credit Extension on the Effective Draw Down Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally ) is subject to the satisfaction of the following conditionsconditions with respect to said Borrower and the Parent:
(a) No Default or Event of Default shall have occurred and be continuing on such date nor will result from the making of such Loan.
(b) Each of the representations and warranties of the Borrower made by any Loan Party set forth in Article IV, and of each Loan Party III hereof or in each of the any other Loan Documents to which it is a party, Document shall be true and correct on and as of the date of such Loan or with the date of issuance, amendment, renewal or extension of such Letter of Credit, same effect as applicable (or, if any such representation or warranty is expressly stated to have been though made as of a specific date, on and as of such date); and, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct as of such earlier date.
(bc) at the time of and The applicable Borrower shall have delivered a Borrowing Request in accordance with Section 2.03.
(d) Prior to, or substantially concurrently with (or immediately after giving effect to) the Borrowing on the Draw Down Date, all commitments under the Existing Senior Unsecured Japanese Yen Revolving Credit Agreement shall have been terminated, the Company shall have repaid the Existing Senior Unsecured Japanese Yen Revolving Credit Agreement in full (subject to such Loan or the issuance, amendment, renewal or extension netting provisions of Section 2.04(a)) including the repayment provided and the Agent shall have received evidence reasonably satisfactory to it of such Letter repayment and termination of Creditthe Existing Senior Unsecured Japanese Yen Revolving Credit Agreement. It is understood by the parties hereto that all or a portion of the outstanding amounts under the Existing Senior Unsecured Japanese Yen Revolving Credit Agreement will be repaid with proceeds from Loans under this Agreement and therefore the Administrative Agent and the Lenders agree and acknowledge that if definitive arrangements and procedures are made and set up for the Existing Senior Unsecured Japanese Yen Revolving Creditor to be repaid substantially concurrently with (or immediately after giving effect to) the Borrowing on the Draw Down Date, as applicablethat shall suffice for purposes of this condition, no Default shall have occurred and be continuingsuch borrowing may occur on the Draw Down Date with proceeds thereof being substantially concurrently applied to repay (or net off-setted in accordance with Section 2.04(s) against) amounts outstanding Existing Senior Unsecured Japanese Yen Revolving Credit to the extent not being repaid from other sources. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit Request shall be deemed to constitute a representation and warranty by the relevant Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bd) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Teva Pharmaceutical Industries LTD)
Each Credit Event. The obligation of each Revolving Lender to make any a Revolving Loan (other than the Loans made on the occasion of any Revolving Borrowing after the 2015 Restatement Effective Date), and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than after the Letters 2015 Restatement Effective Date, is subject to receipt of Credit issued on the Effective Date request therefore in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
conditions (a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit (for purposes of this Section, an “issuance”) shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section):
(a) the representations and warranties of the Loan Parties contained in each Senior Loan Document are true and correct in all material respects on and as of the date of such Borrowing or issuance, before and after giving effect to such Borrowing or issuance and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent any such representation or warranty expressly relates to an earlier date, in which case such representation and warranty shall have been true and correct in all material respects as of such earlier date);
(b) no event has occurred and is continuing, or would result from such Borrowing or issuance or from the application of the immediately preceding sentence. In addition proceeds therefrom, that constitutes a Default or an Event of Default and such Borrowing or issuance would not result in a violation of the amount of secured Indebtedness permitted under the Second Priority Debt Documents;
(c) after giving effect to such Borrowing or issuance the other conditions precedent herein set forthBorrowing Base Amount shall be equal to or greater than the sum of (i) the total Revolving Exposures, if any (ii) the total Other Revolving Credit Lender becomesExposures, (iii) the outstanding Term Loans and during (iv) the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as Additional Senior Debt; and
(d) in the case may be, is satisfied that any exposure of the first Borrowing or issuance that would result therefrom is eliminated or fully covered by in the Commitments aggregate Revolving Exposures of the Non-Defaulting Revolving Lenders exceeding $3,000,000,000, the 8.00% Secured Note Repayment Date shall have occurred or by Cash Collateralization or a combination thereof shall occur, under arrangements satisfactory to the Issuer Administrative Agent, on the date of such Borrowing or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20issuance.
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, except for (i) those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, (ii) representations and warranties effective as of a specified date, which shall remain true and correct as of such specified date, and (iii) changes in facts and circumstances that are not prohibited by the terms of this Agreement;
(c) since December 31, 2011, there shall have occurred been no change that has had or could reasonably be expected to have a Material Adverse Effect
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and be continuingsubstance reasonably satisfactory to the Administrative Agent or the Required Lenders. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses subsections (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Healthways, Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion occasion of any Borrowing), are additionally Borrowing is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan or Borrowing before and after giving effect to such Borrowing and to the date application of issuance, amendment, renewal or extension of such Letter of Creditproceeds therefrom, as applicable (or, if any such representation or warranty is expressly stated to have been though made as of a specific date, on and as of such date; provided that, to the extent that such representations and warranties specifically refer to an earlier date or period, they shall be true and correct in all material respects as of such earlier date or period; provided further that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the date of such Credit Extension or on such earlier date, as the case may be (after giving effect to such qualification); and.
(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) Solely to the extent that immediately after giving effect to such Borrowing, the aggregate outstanding principal amount of Loans represents more than 30% of the aggregate Commitments, at the time of and immediately after giving effect to such Loan or Borrowing, the issuanceBorrower shall be in compliance with the covenants set forth in Section 6.08 and Section 6.09 for the Test Period most recently ended on a pro forma basis.
(d) Solely to the extent that immediately after giving effect to such Borrowing, amendmentthe aggregate outstanding principal amount of Loans represents more than 30% of the aggregate Commitments, renewal or extension at the time of and immediately after giving effect to such Letter of CreditBorrowing, as applicable, no Default the Borrower shall be in compliance with the Guarantor Coverage Test for the Test Period most recently ended.
(e) The Administrative Agent shall have occurred and be continuingreceived a notice of borrowing in accordance with Article II hereof. Each Borrowing and each issuance, amendment, renewal (provided that a conversion or extension a continuation of a Letter Borrowing shall not constitute a “Borrowing” for purposes of Credit this Section) shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b), and, if applicable, (c) and (bd) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Constellium N.V.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred exist;
(b) at the time of and be continuing. Each immediately after giving effect to such Borrowing and each or the issuance, amendment, renewal or extension of a such Letter of Credit Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents, the applicable Notice of Borrowing and all Compliance Certificates shall be deemed true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto; and
(c) immediately after giving effect to constitute a representation and warranty by such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Borrower on is in pro forma compliance with Section 6.1 as of the most recently ended Fiscal Quarter for which financial statements have been delivered but measuring Consolidated Total Funded Debt as of the date thereof of such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as to the matters specified in clauses (a) and (b) of the immediately preceding sentenceapplicable. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, is a Defaulting Lender or a Potential Defaulting LenderLender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Lender Bank will not be required to issue issue, amend or increase any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline LoanLoans, unless they are satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated by any combination satisfactory to the Issuing Lender Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments reallocated, as to outstanding and future Letters of Credit, to the Non-Defaulting Lenders as provided in Section 2.26(a)(1); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.26(a)(2), the Borrower Cash Collateralizes its reimbursement obligations in respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, however, that (a) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a combination thereof satisfactory to waiver or release of any claim the Issuer or Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender in its sole discretionor any other Lender may have against such Defaulting Lender, in each case, in accordance with Section 2.20or cause such Defaulting Lender to be a Non-Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Catalyst Health Solutions, Inc.)
Each Credit Event. The obligation obligations of (a) each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the (b) each Issuing Lender Bank to issue, amend, renew renew, reinstate or extend any Letter of Credit (other than it being understood that the Letters conversion into or continuation of a Eurodollar Loan or, solely with respect to Section 4.02(a), the amendment, renewal, reinstatement or extension of a Letter of Credit issued on does not constitute a Borrowing or the Effective Date and excluding the continuation or conversion issuance of any Borrowinga Letter of Credit), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension issuance of such Letter of Credit, as applicable applicable, except that such representations and warranties (or, if any such representation or warranty is expressly stated i) that relate solely to have been made as of a specific date, an earlier date shall be true and correct in all material respects as of such date); andearlier date and (ii) shall be true and correct in all respects to the extent they are qualified by a materiality standard.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal renewal, reinstatement or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal, reinstatement or extension of any Letter of Credit, the Aggregate Revolving Exposure shall not exceed the aggregate Revolving Commitments.
(d) In the case of any Borrowing of a Delayed Draw Term Loan:
(i) such Borrowing shall have been requested to be funded prior to the Delayed Draw Termination Date;
(ii) such Borrowing shall be in an amount not less than $25,000,000 (or, if less, the remaining undrawn Delayed Draw Term Loan Commitments); and
(iii) the Administrative Agent and the Lenders shall have received all fees and expenses required to be paid on or prior to the applicable Delayed Draw Funding Date pursuant to the Loan Documents. Each Borrowing and each issuanceissuance of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrowers on the date thereof as to the matters specified in paragraphs (a), (b) and (c) of this Section 4.02. Each amendment, renewal renewal, reinstatement or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (ab) and (bc) of the immediately preceding sentencethis Section 4.02. In addition Notwithstanding anything in this Agreement or anything else to the other conditions precedent herein set forthcontrary, if with respect to any Revolving Credit Lender becomesDelayed Draw Term Loan or Incremental Loans, the proceeds of which shall be used to finance a Limited Condition Acquisition, (x) with respect to clause (i) above, the only representations and warranties, the accuracy of which shall be a condition to the availability of such Delayed Draw Term Loan on the applicable Delayed Draw Funding Date or Incremental Loans, shall be limited to customary “specified representations”, and during (y) with respect to clause (ii) above, it shall only be a condition to the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter availability of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lendersuch Delayed Draw Term Loan that, as of the case may beapplicable Delayed Draw Funding Date or Incremental Loans, is satisfied that any exposure that no Event of Default under clause (a), (b), (h) or (i) of Article VII exists or would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20therefrom.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the fact that, immediately after such Borrowing or such action by the Issuing Bank, no Default or Event of Default shall have occurred and be continuing;
(b) the fact that the representations and warranties contained in Article III of this Agreement (including, without limitation, the Borrower representation and warranty set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, Section 3.04(b)) shall be true and correct in all material respects on and as of the date of such Loan Borrowing or such action by the Issuing Bank, except for changes expressly permitted herein and except to the extent that such representations and warranties relate solely to an earlier date of issuance, amendment, renewal or extension of (in which event such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to representations and warranties shall have been made as of a specific date, true in all material respects on and as of such earlier date);
(c) the fact that, immediately after such Borrowing or such action by the Issuing Bank, (i) the US Tranche Exposure of each US Tranche Lender will not exceed the amount of its US Tranche Commitment, (ii) the US Tranche Exposures of all US Tranche Lenders will not exceed the total US Tranche Commitments, (iii) if such Borrowing or Letter of Credit is denominated in a Foreign Currency, the Multicurrency Tranche Exposure of each Multicurrency Tranche Lender will not exceed the amount of its Multicurrency Tranche Commitment, and (iv) if such Borrowing or Letter of Credit is denominated in a Foreign Currency, the Multicurrency Tranche Exposures of all Multicurrency Tranche Lenders will not exceed the total Multicurrency Tranche Commitments; and
(bd) at In the time case of a Loan or Letter of Credit denominated in a Foreign Currency or to a Foreign Subsidiary Borrower, no law or regulation shall prohibit, and immediately after giving effect to such no order, judgment or decree of any Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or the issuanceIssuing Bank or any Lender from issuing, amendmentrenewing, renewal extending or extension increasing the face amount of such or participating in the Letter of CreditCredit requested to be issued, as applicablerenewed, no Default shall have occurred and be continuingextended or increased. Each Borrowing Loan and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(c) since June 30, 2014, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing;
(e) if a request is made by the Borrower for the issuance of a Letter of Credit, the Administrative Agent shall have received such other documents, certificates or information as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or Required Lenders; provided that any such additional documents, certificates or information may be required only if the circumstances reasonably support such request by the Administrative Agent or Required Lenders, as applicable; and
(f) if any Revolving Lender is a Defaulting Lender at the time of any request by the Borrower of a Borrowing of a Swingline Loan or the issuance, amendment, renewal or extension of a Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Bank will not be required to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless they are satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated pursuant to Section 2.26. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct only as of such specified date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) No event shall have occurred and no condition shall exist which has or could be reasonably expected to have a Material Adverse Effect.
(d) After giving effect to any Revolving Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, the Aggregate Revolving Exposure shall not exceed the aggregate Revolving Commitments. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b), (c) and (d) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) or (c) or (d) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality, in all respects) on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit (except to the extent stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), in each case before and after giving effect thereto;
(c) Reserved;
(d) the Borrower shall have occurred delivered the required Notice of Borrowing, or, in the case of any Letter of Credit, any other notice required pursuant to Section 2.23;
(e) Reserved; and
(f) to the extent any Lender is a Defaulting Lender or a Potential Defaulting Lender, at the time of such Swingline Loan or issuance of such Letter of Credit, the cost or loss to the Issuing Bank or the Swingline Lender, as the case may be, that would result therefrom is fully covered or eliminated by (i) with respect to such Letter of Credit, (x) the LC Exposure of such Defaulting Lender or Potential Defaulting Lender being reallocated among all other Lenders that are Non-Defaulting Lenders in proportion with their Pro Rata Share, but only to the extent that, after giving effect to such reallocation, the Revolving Credit Exposure of each Non-Defaulting Lender does not exceed such Non-Defaulting Lender’s Pro Rata Share of the Aggregate Revolving Commitment Amount; and (y) to the extent that such LC Exposure of such Defaulting Lender or Potential Defaulting Lender exceeds the amount that is permitted to be continuingreallocated pursuant to the immediately preceding clause (x), the Borrower having provided cash collateral to the Administrative Agent to hold on behalf of the Borrower, on terms and conditions reasonably satisfactory to the Issuing Bank and the Administrative Agent, in an amount equal to such excess, (ii) with respect to any Swingline Loan, the Borrower having provided cash collateral to the Administrative Agent to hold on behalf of the Borrower, on terms and conditions reasonably satisfactory to the Swingline Lender and the Administrative Agent, in an amount equal to the Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender, or (iii) the Borrower making other arrangements reasonably satisfactory to the Administrative Agent and the Issuing Bank or the Swingline Lender, as applicable, in their reasonable discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that none of the foregoing will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Strayer Education Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by an Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, except to the extent such representations and warranties expressly relate to an earlier date);
(c) since December 31, 2009, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit, unless they are satisfied that 100% of the related LC Exposure is fully covered or eliminated by any combination satisfactory to the Issuing Bank of the following:
(i) in the case of a Defaulting Lender, the LC Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit, to the Non-Defaulting Lenders as provided in Section 2.25(a)(i); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.25(a)(ii), the Borrower Cash Collateralizes its reimbursement obligations in respect of such Letter of Credit in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit, or the Borrower makes other arrangements satisfactory to the Administrative Agent and the Issuing Bank, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, however, that (a) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure may not in any event exceed the Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Samples: Revolving Credit Agreement (Ram Energy Resources Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion occasion of any Borrowing), are additionally Borrowing (including the initial funding) is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at At the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicableBorrowing, no Default shall have occurred and be continuing. Each Borrowing .
(b) The representations and each issuance, amendment, renewal or extension warranties of a Letter of Credit the Borrower and the Guarantors set forth in this Agreement and in the other Loan Documents shall be deemed to constitute a true and correct in all material respects (unless such representation and warranty is already qualified by materiality, in which case such representation or warranty shall simply be true and correct) on and as of the date of such Borrowing, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing, such representations and warranties shall continue to be true and correct as aforesaid as of such specified earlier date.
(c) The receipt by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) Administrative Agent of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, Borrowing Request in accordance with Section 2.202.03 together with such other documents as the Administrative Agent or any Lender (acting through the Administrative Agent) may reasonably request in support thereof.
(d) Subject to Permitted Variances, the Debtors shall be in compliance in all respects with the DIP Budget, and the amount requested in the relevant Borrowing Request shall be used to fund disbursements described in the DIP Budget.
(e) The Interim Financing Order shall be in full force and effect and shall not have been vacated, stayed, reversed, modified or amended or, if the date of the requested extension of credit is more than thirty (30) days after the Effective Date, or if the amount of the Loan, together with the total outstanding principal amount of the Loans, would exceed the maximum amount authorized pursuant to the Interim Financing Order, then (x) the Administrative Agent shall have received, with a copy for each Lender, a date stamped copy of the Final Financing Order entered by the Bankruptcy Court, in form and substance satisfactory to the Required Lenders with such changes thereto as may be approved by the Required Lenders and their counsel and (y) the Final Financing Order shall be in full force and effect and shall not have been vacated, stayed, reversed, modified or amended; provided that the Required Lenders may approve any amendment or modification to the Financing Orders (except that any amendment or modification to any Financing Order that would have the effect of revising provisions contained herein that require the consent of all of the Lenders pursuant to Section 12.01 will require the consent of all of the Lenders).
Appears in 1 contract
Samples: Loan Agreement (Dune Energy Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects, on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto) except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date;
(c) since June 30, 2012, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing;
(e) if a request is made by the Borrower for the issuance of a Letter of Credit, the Administrative Agent shall have received such other documents, certificates or information as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or Required Lenders; provided that any such additional documents, certificates or information may be required only if the circumstances reasonably support such request by the Administrative Agent or Required Lenders, as applicable; and
(f) if any Revolving Lender is a Defaulting Lender at the time of any request by the Borrower of a Borrowing of a Swingline Loan or the issuance, amendment, renewal or extension of a Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Bank will not be required to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless they are satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated pursuant to Section 2.26. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist; provided, however, that any Default or Event of Default that was waived by the Required Lenders prior to such date must have occurred been approved by the Required Revolving Credit Lenders in order for such Default or Event of Default to be waived for purposes of this Section 3.2(a);
(b) at the time of and be continuing. Each immediately after giving effect to such Borrowing and each or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date of such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, in each case before and after giving effect thereto except (i) with respect to representations and warranties made as of an expressed date, in which case such representations and warranties shall be true and correct as of such date, and (ii) changes or events which are permitted under this Agreement;
(c) (i) with respect to the Parent, RLJ Acquisition, Image Merger Sub, RLJ Acquisition Merger Sub, Acorn and Acorn’s Subsidiaries, since December 31, 2011, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect, and (ii) with respect to Image and its Subsidiaries, since March 31, 2012, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrowers shall have delivered the required Notice of Borrowing to the Administrative Agent or Request for Issuance of Letter of Credit to the Issuing Bank, as applicable;
(e) the Loan Parties shall have delivered such other documents, certificates, opinions, or information as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders, as applicable; and
(f) with respect to the issuance of any Letter of Credit or the making of any Swingline Loan, there is no Defaulting Lender at the time such Swingline Loan is to be made or Letter of Credit is to be issued, unless (i) for the issuance of any Letter of Credit, one of the following arrangements have been made with respect to the undivided interest and participation of such Defaulting Lender in and to such Letter of Credit (and all other Letters of Credit then outstanding): (A) the Borrowers’ posting of cash collateral with the Issuing Bank in an amount equal to such Defaulting Lender’s participation therein on terms satisfactory to the Administrative Agent and the Issuing Bank, (B) the reallocation of the Revolving Commitments among the Non-Defaulting Lenders pursuant to Section 2.17(a)(i), or (C) such other arrangements satisfactory to the Administrative Agent and the Issuing Bank, and (ii) for the making of any Swingline Loan, one of the following arrangements have been made with respect to the undivided interest and participation of such Defaulting Lender in and to such Swingline Loan (and all other Swingline Loans then outstanding): (A) the reallocation of the Revolving Commitments among the Non-Defaulting Lenders pursuant to Section 2.17(a)(i), or (B) such other arrangements satisfactory to the Administrative Agent and the Swingline Lender. Each Borrowing shall be deemed to constitute a representation and warranty by the each Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of this Section 3.2. The Borrowers hereby agree that the immediately preceding sentence. In addition delivery of any Notice of Borrowing hereunder or any telephonic request for a Borrowing hereunder shall be deemed to be the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments certification of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to Borrowers that all of the Issuer or the Swingline Lender conditions set forth in its sole discretion, in each case, in accordance with this Section 2.203.2 have been satisfied.
Appears in 1 contract
Each Credit Event. The obligation of each Lender any Bank to make any Loan (a Loan, other than the Loans made a Refunded Swing Loan, on the Effective Date), occasion of any Borrowing and of the an Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters such Borrowing or such issuance, amendment, renewal or extension of a Letter of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is referred to herein as a "Credit Event") is subject to the satisfaction of the following conditions:
(a) the Closing Date shall have occurred on or prior to February 8, 2002;
(b) receipt by the Lead Agent of a Notice of Borrowing as required by Section 2.2, a Money Market Quote Request as required by Section 2.1(c)(ii) or a request for issuance of a Letter of Credit as required by Section 2A.1(c);
(c) immediately after such Credit Event, the Outstanding Balance will not exceed the aggregate amount of the Commitments and, with respect to each Bank, such Bank's pro rata portion of the Committed Loans and Letter of Credit Obligations will not exceed an amount equal to the lesser of (i) such Bank's Commitment and (ii) such Bank's pro rata share of the Available Facility;
(d) immediately before and after such Credit Event, no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such Credit Event;
(e) the representations and warranties of the Borrower set forth contained in Article IV, this Agreement and of each Loan Party the Guarantors in each the Guaranties (other than representations and warranties which speak as of the other Loan Documents to which it is a party, specific date) shall be true and correct in all material respects on and as of the date of such Loan Credit Event both before and after giving effect to such Credit Event;
(f) no law or regulation shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued, and no litigation shall be pending or threatened, which does or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain, the date making or repayment of the Loans or issuance, amendment, renewal or extension of such Letter Letters of Credit, as applicable (oror any participations therein, if any such representation or warranty is expressly stated to have been made as the consummation of a specific date, as of such date)the transactions contemplated hereby; and
(bg) at the time of and immediately after giving effect to such Loan no event, act or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default condition shall have occurred and be continuingafter the Closing Date which, in the reasonable judgment of the Lead Agent or the Required Banks, as the case may be, has had or is likely to have a Material Adverse Effect. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit Event hereunder shall be deemed to constitute be a representation and warranty by the Borrower on the date thereof of such Credit Event as to the matters facts specified in clauses (ac) and through (bg) of this Section (except that with respect to clause (f), such representation and warranty shall be deemed to be limited to laws, regulations, orders, judgments, decrees and litigation solely affecting the immediately preceding sentence. In addition to Borrower and not the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Banks).
Appears in 1 contract
Samples: Revolving Credit Agreement (Cabot Industrial Properties Lp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the including without limitation Swingline Loans made but excluding Protective Advances) on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (applicable, or, if they are not true and correct, the applicable Administrative Agent and the Required Lenders shall have determined to make any Loan or instruct the Issuing Bank to issue any Letters of Credit, notwithstanding that such representation or warranty is expressly stated to have been made as of a specific date, as of such date); anduntrue or incorrect.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuingcontinuing or, if there then shall be any Default or Event of Default, the applicable Administrative Agent and the Required Lenders shall have determined to make such Borrowing or instruct the Issuing Bank to issue such Letter of Credit notwithstanding such Default or Event of Default.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, Availability is not less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the each Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue or cause to be required to issue issued any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or issuing or causing to amend be issued any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (Systemax Inc)
Each Credit Event. The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)Loan, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters Credit, including in each case any such extension of Credit issued credit on the Third Restatement Effective Date and excluding the continuation or conversion of any Borrowing), are is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects (other than any representation or warranty already qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (applicable, or, if as to any such representation or warranty is expressly stated that refers to have been made as of a specific date, as of such specific date); and;
(b) at the time of and immediately after giving effect to such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing;
(c) either (i) the aggregate Covered Debt Amount (after giving effect to such extension of credit) shall not exceed the Borrowing Base reflected on the Borrowing Base Certificate most recently delivered to the Administrative Agent or (ii) the Borrower shall have delivered an updated Borrowing Base Certificate demonstrating that the Covered Debt Amount (after giving effect to such extension of credit) shall not exceed the Borrowing Base after giving effect to such extension of credit as well as any concurrent acquisitions of Portfolio Investments by the Borrower, cash collateralization of Letters of Credit as contemplated by Section 2.05(k), or payment of outstanding Loans or Other Covered Indebtedness;
(d) after giving effect to such extension of credit, the Borrower shall be in pro forma compliance with each of the covenants set forth in Sections 6.07; and
(e) the proposed date of such extension of credit shall take place during the Availability Period. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (First Eagle Alternative Capital BDC, Inc.)
Each Credit Event. The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)Loan, and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer Issuing Lender or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Samples: Credit Agreement (HMS Holdings Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) : at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist or would result from such Borrowing; at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date. Notwithstanding anything in this Agreement to the contrary, the representations and warranties relating to Targets and their Subsidiaries made solely on the Delayed Draw Date under Article IV shall be limited to (x) the Specified Credit Agreement Representations and (y) the Specified Purchase Agreement Representations; provided, that, after the Delayed Draw Date, any representation and warranty relating to a Subsidiary of the Parent (whether such Subsidiary is one of the Targets or their Subsidiaries) shall not be qualified or limited as immediately provided above in clause (x) or (y). since the date of the most recent audited financial statements of the Parent and its Subsidiaries described in Section 4.5(a), there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect; provided, that solely with respect to the Targets and their Subsidiaries at the time of any Borrowing related solely to the closing of such Acquisition, there shall have been no change that has had or could be continuingreasonably expected to have a Target Material Adverse Effect since the Closing Date; the Borrower shall have delivered the required Notice of Borrowing; and the Administrative Agent shall have received such other documents, certificates and legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be required to issue any Letter of Credit or to extend, renew or amend any outstanding Letter of Credit and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Bank or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is fully covered or eliminated by the Borrower Cash Collateralizing the obligations of the Borrower in respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, that no such Cash Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (aparagraphs (a), (b) and (b(c) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.3.
Appears in 1 contract
Each Credit Event. (a) The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)a Loan, and of the Issuing Lender Banks to issue, amendincrease, renew or extend any Letter of Credit (other than the Letters of Credit issued Credit, on the Effective Date and excluding date of the continuation or conversion consummation of any Borrowing), are additionally the Specified Acquisition (the “Specified Acquisition Closing Date”) is subject solely to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(ai) Each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (in the case of the Acquisition Agreement Representations, to the extent required pursuant to the definition thereof) at the time of, and after giving effect to, the making of the Loans on such date.
(ii) The Administrative Agent shall have received a solvency certificate from the Chief Financial Officer of the Company substantially in the form set forth in Exhibit K hereto.
(iii) The Specified Acquisition shall have been consummated substantially concurrently with the making of the Loans on such date, in all material respects in accordance with the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents or waivers, other than those modifications, amendments, supplements, consents or waivers by the Company that are materially adverse to JPMorgan Chase Bank, N.A. in its capacity as arranger and lender in connection with the financing for the Specified Acquisition Transactions (in such capacity, the “Specified Acquisition Arranger”) or the Lenders (in their capacities as such) without the Specified Acquisition Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided that any change in the Merger Consideration (as defined in the Acquisition Agreement) shall not be deemed to be materially adverse to the interests of the Lenders or the Specified Acquisition Arranger and shall not require the consent of the Specified Acquisition Arranger if such change results in the number of shares of Parent Common Stock (as defined in the Acquisition Agreement) for which each share of Company Common Stock (as defined in the Acquisition Agreement), other than any Exception Shares (as defined in the Acquisition Agreement), may be converted pursuant to the Acquisition Agreement increasing or decreasing by 7.5% or less.
(iv) Since January 16, 2019, no event or events shall have occurred that have had or would reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Acquisition Agreement as in effect on January 16, 2019) on First Data.
(v) The Administrative Agent and the Lenders shall have received (i) all fees required to be paid under this Agreement on or prior to the Specified Acquisition Closing Date and, to the extent payable to the Lenders under this Agreement or their Affiliates on or prior to the Specified Acquisition Closing Date, all fees required to be paid pursuant to the terms of (A) the Permanent Loan Financing Fee Letter, dated as of January 16, 2019, by and between the Company and the Specified Acquisition Arranger (the “Permanent Financing Fee Letter”) and (B) the Bridge Facility Fee Letter, dated as of January 16, 2019, by and between the Company and the Specified Acquisition Arranger or the definitive documentation in respect of the Bridge Facility (as such term is used in such Bridge Facility Fee Letter), in each case, on or prior to the Specified Acquisition Closing Date, and (ii) to the extent invoiced at least three (3) Business Days prior to the Specified Acquisition Closing Date, expenses required to be paid hereunder on or prior to the Specified Acquisition Closing Date.
(vi) All obligations (other than contingent obligations (including indemnification obligations) that by their terms are to survive the termination of the relevant loan documentation and debt instruments evidencing third party debt) for borrowed money of First Data and its subsidiaries under the instruments set forth on Schedule 4.02(a)(vi) shall have been (or substantially concurrently with the making of the Loans on such date shall be) repaid or satisfied and discharged, and in connection therewith all guarantees and liens shall have been released, on or prior to the Specified Acquisition Closing Date.
(vii) The Administrative Agent shall have received a certificate from a responsible officer of the Company certifying as to the satisfaction of the condition precedent contained in Section 4.02(a)(i) (solely with respect to the Specified Representations), (iii) and (iv).
(b) The obligation of each Lender to make a Loan, and of the Issuing Banks to issue, increase, renew or extend any Letter of Credit, other than on the date of the consummation of the Specified Acquisition, is subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(i) The representations and warranties of the Borrower Borrowers set forth in Article IVthis Agreement (other than the representations contained in Sections 3.04(a), 3.12(b) and of each Loan Party in each of the other Loan Documents to which it is a party, 3.18) 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 Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and) or the date of issuance, amendment to increase, renewal or extension of such Letter of Credit, as applicable.
(bii) at At the time of and immediately after giving effect to such Loan or the issuance, amendmentamendment to increase, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing Loan and each issuance, amendmentamendment to increase, renewal or extension of a Letter of Credit pursuant to this Section 4.02(b) shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (ai) and (bii) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.204.02(b).
Appears in 1 contract
Samples: Credit Agreement (Fiserv Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects (or, in the case of representations and warranties qualified as to materiality, in all respects) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if except in the case of any such representation or and warranty is that expressly stated relates to have been made as of a specific prior date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) no Default shall have occurred and be continuingcontinuing and (ii) the Borrower shall have been in compliance, on an actual and not a Pro Forma basis, with the Financial Covenant as of the last day the most recently ended fiscal quarter for which financial statements either have been or were required to have been delivered pursuant to Section 5.01(a) or (b), and not giving effect to any transaction, including any Revolving Loan or Letter of Credit, thereafter, even if the Financial Covenant was not required to be tested on the last day of such fiscal quarter, and the Administrative Agent shall have received the Compliance Certificate demonstrating such compliance required to be delivered pursuant to Section 5.01(c). Each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by Holdings and the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower each Loan Party set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of each such Loan or Borrowing (including the date of issuance, amendment, renewal or extension of such Letter Letters of Credit) as if made on such date (except where such representation or warranty refers to a different date). With respect to any such representations and warranties that do not relate solely to the Effective Date or any other specific earlier date, the Loan Parties may supplement each such representation or warranty and/or any applicable schedule herein or in any other Loan Document, with respect to any matter hereafter arising that would have been required to be set forth as an exception to such representation or warranty and/or any applicable (or, if schedule or that is necessary to correct any such representation or warranty is expressly stated and/or any applicable schedule which has been rendered inaccurate thereby; provided that no such supplement to have been made any such representation or warranty and/or any applicable schedule shall amend, supplement or otherwise modify any representation or warranty and/or any applicable schedule, or be or be deemed a waiver of any Default or Event of Default resulting from the matters disclosed therein, except as of a specific date, as of such date); andconsented to by the Administrative Agent and the Required Lenders in writing;
(b) at the time of and immediately after giving effect to such Loan or Borrowing (including the issuance, amendment, renewal or extension of such Letter of Credit, as applicable), no Default or Event of Default shall have occurred and be continuing;
(c) except in respect of Swingline Loans, the Administrative Agent shall have received a Borrowing Request in the manner and within the time period required by Section 2.03;
(d) after giving effect to the extension of credit requested to be made by a Borrower on such date, the Aggregate Credit Exposure will not exceed the lesser of (i) the Commitments, or (ii) an amount equal to the Borrowing Base; and
(e) the Borrowing shall not violate any Applicable Law on such date. Each Borrowing and Borrowing, including each issuance, amendment, renewal or extension of a Letter of Credit Guarantee or a Letter of Credit, shall be deemed to constitute a representation and warranty by the applicable Borrower on the date thereof as to the accuracy of the matters specified in clauses paragraphs (a), (b) and (bd) above. This requirement does not apply on the conversion or rollover of an existing Borrowing provided that the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender aggregate outstanding Borrowings will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, increased as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20consequence thereof.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) no Default shall have occurred and be continuing, and (ii) no Protective Advance shall be outstanding.
(c) After giving effect to any Revolving Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability is not less than zero.
(d) Solely with respect to the making of the Term Loans to the Borrower on the Term Loan Funding Date, the Term Loan Funding Conditions shall have been satisfied. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing that increases the outstanding amount of Loans hereunder, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than that increases the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)outstanding LC Exposure, are additionally is subject to the satisfaction or waiver of the following conditions:
(a) the The representations and warranties of the Borrower and the other Loan Parties set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects (without duplication of any materiality qualifier contained therein) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if except to the extent any such representation or warranty is expressly stated to relate to an earlier date, in which case such representation or warranty shall have been made as true and correct in all material respects (without duplication of a specific date, any materiality qualifier contained therein) on and as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) To the extent any of the proceeds of any such Loan are used to repay or prepay Indebtedness permitted to exist under Section 6.02(d) or Section 6.02(h), the Borrower shall deliver to the Administrative Agent at least 10 days or more prior to such repayment or prepayment (or such lesser time as acceptable to the Administrative Agent), a Compliance Certificate evidencing pro-forma compliance after giving effect to such repayment or prepayment for a period commencing the date thereof through the Maturity Date, together with supporting projections with respect thereto.
(d) The Borrower is in compliance, and will be in compliance after giving effect to such Borrowing, or such issuance, amendment, renewal and extension of any Letter of Credit, with the 2001 Senior Subordinated Debt Documents (including, without limitation, the 2001 Senior Subordinated Notes Indenture), the 2005 Senior Subordinated Debt Documents (including, without limitation, the 2005 Senior Subordinated Notes Indenture), the Exchange Notes Documentation (including, without limitation, the Exchange Notes Indenture) and all documentation executed in connection with any junior or subordinate financing incurred in accordance with the terms of Section 6.05, including, without limitation, the provisions of the indentures related thereto.
(e) The Borrower shall deliver to the Administrative Agent a Compliance Certificate demonstrating pro forma compliance with all covenants in this Agreement, including, without limitation, the financial covenants contained in Section 6.01. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Radio One, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) no Default shall have occurred and be continuing, and (ii) no Protective Advance shall be outstanding.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not be less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (Global Brass & Copper Holdings, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, Availability is not less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue or cause to be required to issue issued any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or issuing or causing to amend be issued any outstanding such Letter of Credit, Credit is in the best interests of the Lenders.
19. The first sentence in each of ARTICLE V and ARTICLE VI is amended as follows: Until the Commitments have expired or been terminated and the Swingline Lender will not be required to make any Swingline Loanprincipal of and interest on each Loan and all fees payable hereunder shall have been paid in full and all Letters of Credit shall have expired or terminated and all LC Disbursements shall have been reimbursed, unless the Issuing Lender or the Swingline Lendereach Loan Party executing this Agreement covenants and agrees, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments jointly and severally with all of the Non-Defaulting Loan Parties, with the Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with that:
20. Section 2.20.5.08 is amended as follows:
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, of the Swing Line Lender to make Swing Line Loans and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued including on the Effective Date and excluding occasions of the continuation or conversion of any Borrowinginitial Borrowings hereunder), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower each Credit Party set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of each such Loan or Borrowing (including the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable) as if made on such date (or, if any except where such representation or warranty is expressly stated refers to have been made as of a specific date, as of such different date); and;
(b) at the time of no event has occurred and immediately after giving effect to is continuing, or would result from such Loan or Borrowing (including the issuance, amendment, renewal or extension of such Letter of Credit, as applicable) or from the application of proceeds, no Default if any, therefrom, that constitutes a Default;
(c) the Administrative Agent shall be satisfied that the making of a Loan on the occasion of any Borrowing and the issuance, amendment, renewal or extension of any Letter of Credit will not violate any Applicable Law and will not be enjoined, temporarily, preliminarily or permanently;
(d) the Administrative Agent shall have occurred received a Borrowing Request in the manner and within the time period required by Section 2.3;
(e) the Administrative Agent shall have received the Borrowing Base Report most recently required to be continuingdelivered pursuant to Section 5.1, the calculations contained in which shall be reasonably satisfactory to the Administrative Agent; and
(f) after giving effect to such Borrowing (including the issuance, amendment, renewal or extension of such Letter of Credit, as applicable), the aggregate Exposure will not exceed the Borrowing Base. Each Borrowing and Borrowing, including each issuance, amendment, renewal or extension of a Letter of Credit Credit, shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the accuracy of the matters specified in clauses paragraphs (a) and (b) above (except where any such representation or warranty refers to a specific date). This requirement does not apply on the conversion or rollover of an existing Borrowing provided that the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender aggregate outstanding Borrowings will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, increased as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20consequence thereof.
Appears in 1 contract
Samples: Credit Agreement (Dana Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(ag) the The representations and warranties of the Borrower set forth in Article IV, this Agreement and of each Loan Party contained in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects (provided that any representation and warranty that is qualified by materiality or by reference to Material Adverse Effect shall be true, correct and complete in all respects) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, except that (ori) for purposes of this Section 4.2, if any such representation or warranty is expressly stated the representations and warranties contained in Section 3.4(a) shall be deemed to have been made refer to the most recent annual and quarterly financial statements furnished pursuant to Sections 5.1(a) and (b), respectively and (ii) the representations and warranties contained in Section 3.4(b) need only be true and correct as of a specific date, as the date of such date); andthis Agreement.
(bh) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(i) The Administrative Agent and, if applicable, the Issuing Bank or the Swingline Lender shall have received a Request for Credit Extension in accordance with the requirements hereof.
(j) In the case of a Borrowing to be denominated in an Alternative Currency, there shall not have occurred any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls which, in the reasonable opinion of the Administrative Agent or the Required Lenders, would make it impracticable for such Borrowing to be denominated in the relevant Alternative Currency. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower (or with respect to a Letter of Credit Application, any applicable Subsidiary) on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Borgwarner Inc)
Each Credit Event. The obligation of each Lender to make any Loan (other than in the Loans made on the Effective Datecase of clause (a) or (b) with respect to a Borrowing under Section 2.19), and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and;
(b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing; and
(c) the Administrative Agent shall have received a Borrowing Request or letter of credit request, as applicable, relating to each credit extension hereunder. Each such Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer Issuing Lender or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Samples: Credit Agreement (HMS Holdings Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable; provided, if that to the extent any such representation or warranty is expressly stated specifically refers to have been made as of a specific an earlier date, such representation and warranty shall be true and correct in all material respects on and as of such earlier date); andprovided, further, that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing. Each .
(c) With respect to any Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Tranche B Revolving Loans:
(i) on the date thereof as Eighth Amendment Effective Date, the Borrowers shall have provided the Tranche B Revolving Loan Lenders with evidence reasonably satisfactory to them that the matters specified in clauses (a) and (bcertificate required under Section 4.13(a)(2)(B) of the immediately preceding sentence. In addition High Yield Indenture has been delivered to the other conditions precedent herein set forthtrustee under the High Yield Indenture;
(ii) after the Eighth Amendment Effective Date, if any after the making of such Borrowing, the aggregate outstanding principal amount of Tranche B Loans will exceed $25,000,000, the receipt by the Partnership of a fairness opinion with respect to the Tranche B Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline LenderFacility, as required pursuant to the case may beHigh Yield Note Indenture, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof in form and substance reasonably satisfactory to the Issuer or Tranche B Revolving Lenders, from a firm reasonably acceptable to the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Tranche B Revolving Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) no Default shall have occurred and be continuing, and (ii) no Protective Advance shall be outstanding (unless all or a portion of the proceeds of such Borrowing is contemporaneously used to pay any such Protective Advance in full).
(c) Immediately after giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not be less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b), and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (Cactus, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, of the Swingline Lender to make a Swingline Loan on the occasion of any Swingline Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents qualified as to which it is a party, materiality shall be true and correct and those not so qualified shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if any except to the extent such representation or warranty is representations and warranties expressly stated relate to have been made as of a specific date, an earlier date in which case such representations and warranties shall be true and correct as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) To the extent the proceeds of such Borrowing will be used to finance expenditures relating to property, plant and equipment, after giving effect to such Borrowing, there shall be at least $5,000,000 of unused Revolving Commitments, provided that, for purposes of this clause (c), the amount of unused Revolving Commitments shall be deemed to include amounts that will be due to the Borrower at the closing of any Sale Leaseback relating to Academies under construction at such time if the Borrower has entered into a written agreement with respect to such Sale Leaseback at such time. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by Holdings and the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Lpa Services Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to receipt of the request therefor in accordance herewith and the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if except in the case of any such representation or warranty is that expressly stated relates to have been made as of a specific dateprior date or dates, in which case such representation or warranty shall be true and correct on and as of such date); andprior date or dates.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender Bank or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer Issuing Bank or Swingline Lender. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Swingline Lender Borrower on the date thereof as to the matters specified in its sole discretion, in each case, in accordance with Section 2.20paragraphs (a) and (b) of this Section.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents, the applicable Notice of Borrowing and all Compliance Certificates shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto; and
(c) immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Borrower is in pro forma compliance with Section 6.1 as of the most recently ended Fiscal Quarter for which financial statements have occurred been delivered but measuring Consolidated Total Funded Debt as of the date of such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable. In addition to the other conditions precedent herein set forth, if any Revolving Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless they are satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit, to the Non-Defaulting Lenders as provided in Section 2.26(a)(1); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.26(a)(2), the Borrower Cash Collateralizes its reimbursement obligations in respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, however, that (a) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Catalyst Health Solutions, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, party shall be true and correct in all material respects (other than representations and warranties that are subject to a Material Adverse Effect or a materiality qualifier, in which case such representations and warranties shall be true and correct) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (orother than representations and warranties that were subject to a Material Adverse Effect or a materiality qualifier, if any in which case such representation or warranty is expressly stated to representations and warranties shall have been made as of a specific date, true and correct) in each case as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as .
(c) With respect to the matters specified in clauses (a) and (b) issuance of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter the making of Credit, and the Swingline Lender will not be required to make any Swingline Loan, there is no Defaulting Lender at the time such Swingline Loan is to be made or Letter of Credit is to be issued, unless the Issuing L/C Exposure or Swingline Exposure of such Defaulting Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Nonre-allocated to non-Defaulting Lenders and/or the Borrower has Cash Collateralized or by Cash Collateralization or a combination thereof satisfactory made other arrangements with respect to the Issuer or the Swingline any such non-reallocated Exposure of such Defaulting Lender in its sole discretion, in each case, all in accordance with Section 2.202.22.2.22
(d) With respect to the making of any Term Loan, the Administrative Agent shall have received (i) evidence satisfactory to it that (A) the Borrower has repurchased, has irrevocably tendered for and repurchased, or concurrently with the making of such Term Loans will irrevocably accept tenders of and repurchase, a portion of each or any of the Applicable Senior Notes and pay for accrued interest and premium thereon, provided that the principal amount of the Term Loans requested or made shall not exceed the actual purchase price (including as a result of any discount to par), accrued interest and premium thereon of the Applicable Senior Notes repurchased or to be repurchased, and (B) upon such repurchase, the original principal amount of the Applicable Senior Notes so repurchased will no longer be due or owing under the relevant Senior Notes documentation, and (ii) a certificate from an authorized officer of the Borrower representing to the accuracy of the foregoing.
Appears in 1 contract
Samples: Second Amendment and Joinder Agreement (Seagate Technology PLC)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct in all material respects, or in the case of a representation and warranty that is qualified by a Material Adverse Effect shall be true and correct, on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orexcept for representations and warranties that are made as of a specific date or time, which shall be true and correct only as of such specific date or time), and if any they are not true and correct in all material respects, or in the case of a representation and warranty that is qualified by a Material Adverse Effect not true and correct, the Administrative Agent or the Required Lenders shall have determined not to make such Loan or instructed the Issuing Bank not to issue Letters of Credit as a result of the fact that such representation or warranty is expressly stated to have been made as of a specific date, as of such date); anduntrue or incorrect.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuingcontinuing other than, solely during the Standstill Period, an Integrated Default, and the Administrative Agent or the Required Lenders shall have determined not to make such Loan or instructed the Issuing Bank not to issue such Letter of Credit as a result of such Default.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, Availability is not less than zero.
(d) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit during the Standstill Period, the Aggregate Credit Exposure is not more than the Standstill Amount. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew renew, or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) at the representations time of and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents immediately after giving effect to which it is a party, shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal renewal, or extension of such Letter of Credit, as applicable (orapplicable, if any such representation no Default or warranty is expressly stated to have been made as Event of a specific date, as of such date); andDefault shall exist;
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects;
(c) since the date of the most recent financial statements of the Borrower described in Section 5.1(a), there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing; and
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. In addition to other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless in each case it is satisfied that all related LC Exposure and Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender is fully covered or eliminated by any combination satisfactory to the relevant Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 2.25(a)(i); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.25(a)(ii), the Borrower Cash Collateralizes its payment and reimbursement obligations with respect to such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Banks and the Swingline Lender, as the case may be, to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, any Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension, or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower Obligors set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Credit Documents to which it is a party, shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable;
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing;
(c) the Interim Order shall be in full force and effect and shall not have been stayed, reversed, vacated, rescinded, modified or amended in any respect or, if the date of such requested extension of credit is more than 30 days after the Effective Date or if the amount of such requested extension of credit, when added to the total Revolving Credit Exposures, would exceed $25,000,000, the Final Order shall have been entered, which Final Order shall be in full force and effect, shall not have been stayed, reversed, vacated or rescinded or, without the consent of the Required Lenders, modified or amended in any respect and shall be in form and substance satisfactory to the Administrative Agent, the Required Lenders and counsel to the Administrative Agent and, if the Interim Order or the Final Order, as the case may be, is the subject of a pending appeal in any respect, neither the making of such extension of credit nor the performance by the Borrower or any Subsidiary Guarantor of any of its respective obligations under the Credit Documents or under any other instrument or agreement referred to herein or therein shall be the subject of a then effective stay pending appeal; and
(d) The Borrower shall have paid to the Administrative Agent and the Lenders the then unpaid balance of all accrued and unpaid fees, expenses and other amounts then due and payable under and pursuant to this Agreement. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make a Loan, to purchase any Loan (Bonds or to provide any other than the Loans made on the Effective Date), credit accommodation and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, other than representations or warranties which relate to an earlier date, in which case such representations and warranties shall have occurred been true and be continuingcorrect on such earlier date; and
(c) with respect to any Borrowing under the Revolving Commitments, the applicable Borrower shall have delivered the required Notice of US Revolving Borrowing or Notice of Canadian Prime Rate Borrowing. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentencethis Section 5.2. In addition to the other conditions precedent herein set forth, if any Revolving Credit US Lender becomes, and during the period it remains, is a Defaulting Lender at the time of and immediately after giving effect to such Borrowing or a Potential Defaulting Lenderthe issuance, the Issuing Lender will not be required to issue any Letter amendment, renewal or extension of Credit or to amend any outstanding such Letter of Credit, as applicable, set forth in this Section 5.2, no US Issuing Bank will be required to issue, amend or increase any US Letter of Credit and the Swingline Lender will not be required to make any Swingline LoanLoans, unless they are satisfied that 100% of the related US LC Exposure and Swingline Exposure is fully covered or eliminated by any combination satisfactory to the relevant US Issuing Lender Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the US LC Exposure and Swingline Exposure of such Defaulting Lender is satisfied reallocated, as to outstanding and future US Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 4.19(a)(1) above; and
(ii) in the case of a Defaulting Lender, without limiting the provisions of Section 4.19(a)(2), the US Borrower Cash Collateralizes its reimbursement obligations in respect of such US Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the US Borrower makes other arrangements satisfactory to the Administrative Agent, the US Issuing Banks and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or potential Defaulting Lender;
(iii) in the case of a Defaulting Lender, the US Borrower agrees that any exposure that the face amount of such requested US Letter of Credit or the principal amount of such requested Swingline Loan will be reduced by an amount equal to the unreallocated, non-Cash Collateralized portion thereof as to which such Defaulting Lender would result therefrom is eliminated otherwise be liable, in which case the obligations of the Non-Defaulting Lenders in respect of such US Letter of Credit or fully covered by such Swingline Loan will, subject to the limitation in the proviso below, be on a pro rata basis in accordance with the Revolving Commitments of the Non-Defaulting Lenders or Lenders, and the pro rata payment provisions of Section 4.15 will be deemed adjusted to reflect this provision; provided that the sum of each Non-Defaulting Lender’s total US Revolving Credit Exposure may not in any event exceed the US Revolving Commitment of such Non-Defaulting Lender as in effect at the time of such reduction provided, however that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed its Revolving Commitment, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a combination thereof satisfactory to waiver or release of any claim the Issuer or US Borrower, the Administrative Agent, any US Issuing Bank, the Swingline Lender in its sole discretionor any other US Lender may have against such Defaulting Lender, in each case, in accordance with Section 2.20or cause such Defaulting Lender to be a Non-Defaulting Lender.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation including a request for credit extension relating to an advance under an Incremental Commitment or conversion of any BorrowingRefinancing Facility), are additionally is subject to receipt of the request therefor in accordance herewith and the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if except in the case of any such representation or warranty is that expressly stated relates to have been made as of a specific dateprior date or dates, in which case such representation or warranty shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects) on and as of such date); andprior date or dates.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender Bank will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, to increase the face amount thereof, alter the drawing terms thereunder or extend the expiry date thereof, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender Bank or the Swingline Lender, as the case may be, is reasonably satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof reasonably satisfactory to the Issuer Issuing Bank or Swingline Lender. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit (including with respect to an advance under an Incremental Commitment or Refinancing Facility) shall be deemed to constitute a representation and warranty by the Swingline Lender Borrower on the date thereof as to the matters specified in its sole discretion, in each case, in accordance with Section 2.20paragraphs (a) and (b) of this Section.
Appears in 1 contract
Samples: Credit Agreement (PharMerica CORP)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) : at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist or would result from such Borrowing; provided that this clause (a) will not apply to the Term Loan Borrowing made on the Delayed Draw Date; at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date. Notwithstanding anything in this Agreement to the contrary, the representations and warranties relating to Target and its Subsidiaries made solely on the Delayed Draw Date under Article IV shall be limited to (x) the Specified Credit Agreement Representations; (y) the Specified Merger Agreement Representations and (z) the Specified Commitment Letter Representations; provided, that, after the Delayed Draw Date, any representation and warranty relating to a Subsidiary of the Parent (whether such Subsidiary is the Target or one of its Subsidiaries) shall not be qualified or limited as immediately provided above in clause (x), (y) or (z). since the date of the most recent audited financial statements of the Parent and its Subsidiaries described in Section 4.5(a), there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect; provided that this clause (c) will not apply to the Term Loan Borrowing made on the Delayed Draw Date; the Borrower shall have delivered the required Notice of Borrowing; and the Administrative Agent shall have received such other documents, certificates and legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders; provided that this clause (e) will not apply to the Term Loan Borrowing made on the Delayed Draw Date. In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue any Letter of Credit or to extend, renew or amend any outstanding Letter of Credit and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Bank or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is fully covered or eliminated by the Borrower Cash Collateralizing the obligations of the Borrower in respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, that no such Cash Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (aparagraphs (a), (b) and (b(c) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.3.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (including an Incremental Term Loan and other than pursuant to a Mandatory Borrowing) and of each Issuing Bank to issue, amend (other than in a manner that does not changeincrease the Loans made on the Effective Datemaximum stated amount of such Letter of Credit), and of the Issuing Lender to issuerenew, amend, renew or extend any Letter of Credit (other than Credit, the Letters of Credit issued on the Effective Date and excluding the continuation or conversion effectiveness of any Borrowing)Commitment Increase pursuant to Section 2.19, are additionally the effectiveness of any Incremental Facilities pursuant to Section 2.20 and the effectiveness of any extension of the Maturity Date pursuant to Section 2.21, is subject to the satisfaction (or waiver in accordance with Section 9.2) of the following conditions:
(a) Solely in the case of a Borrowing, the Administrative Agent shall have received a Borrowing Request in accordance with Section 2.3.
(b) All representations and warranties of the Borrower set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents (other than, during a Covenant Suspension Period, (x) those set forth in the Collateral Documents and (y) those set forth herein and in the other Loan Documents that are not required to which it is be made during a party, Covenant Suspension Period) shall be true and correct in all material respects on and as of the date of the making of such Loan Loan, such issuance, amendment renewal or extension of such Letter of Credit, or the effectiveness of such Commitment Increase, Incremental Facility or extension, as applicable, except that (i) to the extent that any such representation or warranty is stated to relate solely to an earlier date, it shall be true and correct in all material respects as of such earlier date and, (ii) any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects.
(c) At the time of and immediately after giving effect to the making of such Loan, such issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as the effectiveness of such date); and
(b) at the time of and immediately after giving effect to such Loan Commitment Increase, Incremental Facility or the issuance, amendment, renewal or extension of such Letter of Creditextension, as applicable, no Default or Event of Default shall have occurred and be continuing. Each Borrowing (other than, during a Covenant Suspension Period, (x) Defaults or Events of Default arising from the Collateral Documents and (y) Defaults or Events of Default set forth herein and in the other Loan Documents that do not apply during a Covenant Suspension Period). The making of each Loan, the issuance, amendment, amendment (other than an amendment that does not change the maximum stated amount of such Letter of Credit) renewal or extension of a each Letter of Credit and the effectiveness of each Commitment Increase, Incremental Facility or extension of the Maturity Date shall be deemed to constitute a representation and warranty by each Borrower that the conditions specified in paragraphs (b) and (c) of this Section 4.2 have been satisfied as of the date thereof; provided that, notwithstanding anything to the contrary in this Section 4.2, in connection solely with the Incremental Facilities, if the proceeds of such Incremental Facilities are being used to finance an acquisition not restricted by this agreement and the consummation of which is not conditioned on the availability of, or on obtaining, third party financing and the applicable Incremental Lenders so agree, the reference in Section 4.2(b) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would customarily be deemed to be “specified” representations and warranties under customary “Sungard” provisions (including those with respect to the target contained in the applicable acquisition or merger agreement to the extent failure of such representations and warranties to be true and correct permits the applicable Borrower or relevant Affiliates thereof not to consummate the transactions contemplated thereby) (it being understood that representations corresponding to the “Specified Representations” and “Acquisition Agreement Representations” (each as defined in the Bridge Credit Agreement (as in effect on the date thereof as to hereof)) shall satisfy the matters specified requirement in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.this proviso..
Appears in 1 contract
Samples: Revolving Credit Agreement (CF Industries Holdings, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, this Agreement and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects (except as to any representation or warranty qualified as to materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orexcept, to the extent such representations and warranties expressly relate to an earlier date, in which case as of such earlier date), and if they are not true and correct the Administrative Agent or the Required Lenders shall have determined not to make any Loan or instructed the Issuing Bank not to issue Letters of Credit as a result of the fact that such representation or warranty is expressly stated to have been made as of a specific date, as of such date); anduntrue or incorrect.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuingcontinuing and the Administrative Agent or the Required Lenders shall have determined not to make such Borrowing or instructed the Issuing Bank not to issue such Letter of Credit as a result of such Default.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability is not less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (Potbelly Corp)
Each Credit Event. (a) The obligation of each Lender to make a Loan on the occasion of any Loan Borrowing (other than a conversion or continuation of an outstanding Borrowing and other than a Borrowing to reimburse an LC Disbursement made pursuant to Section 2.07(e), but including the Loans made on the Effective Dateinitial funding), and of the Issuing Lender Bank to issue, amendrenew, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(ai) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Commitment Deficiency shall have occurred and be continuing. Each , and the Recognized Value Ratio shall be greater than or equal to 2.00 to 1.00.
(ii) The representations and warranties of the Borrower and the Restricted Subsidiaries set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the date of such Borrowing and each or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable, except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing or the date of issuance, renewal or extension of such Letter of Credit, as applicable, such representations and warranties shall continue to be true and correct as of such specified earlier date provided, however, that, notwithstanding the foregoing to the contrary, solely with respect to the making of the initial Loans hereunder on the Effective Date (and not with respect to any other matter including, without limitation, with respect to the making of any other Loans and the issuance of any Letter of Credit) the only representations and warranties that are required to be true and correct as a condition to the Lenders’ obligation to make the initial Loans hereunder on the Effective Date are the representations and warranties described and set forth in Section 6.01(r).
(iii) The making of such Loan or the issuance, renewal or extension of such Letter of Credit, as applicable, would not conflict with, or cause any Lender or the Issuing Bank to violate or exceed, any applicable Law, including, without limitation, Regulations T, U, or X of the Board, and no Change in Law shall have occurred, and no litigation shall be pending or threatened, which does or, with respect to any threatened litigation, seeks to, enjoin, prohibit or restrain, the making or repayment of any Loan, the issuance, renewal, extension or repayment of any Letter of Credit or any participations therein or the consummation of the transactions contemplated by this Agreement or any other Loan Document.
(iv) The receipt by the Administrative Agent of a Borrowing Request in accordance with Section 2.03 or a request for a Letter of Credit in accordance with Section 2.07(b), as applicable.
(b) The obligation of each Lender to make a Loan on the occasion of any Borrowing deemed to have been requested by the Borrower to reimburse an LC Disbursement pursuant to Section 2.07(e) shall be subject to the satisfaction of the conditions that (i) at the time of and immediately after giving effect to such Borrowing, no Event of Default shall have occurred and be continuing, and (ii) after giving effect to such Borrowing, the total Credit Exposures shall not exceed the total Commitments.
(c) Each Borrowing (other than a conversion or continuation of an outstanding Borrowing and other than a Borrowing to reimburse an LC Disbursement made pursuant to Section 2.07(e)), and each issuance, renewal or extension of any Letter of Credit will be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (ai), (ii), (iii) and (biv) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20paragraph (a) above.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall be true and correct on and as of such earlier date;
(c) since the date of the financial statements of the Borrower described in Section 4.4, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect; and
(d) the Borrower shall have delivered the required Notice of Borrowing. In addition to other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless in each case it is satisfied that all related LC Exposure and Swingline Exposure of such Defaulting Lender or Potential Defaulting Lender is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 2.23(a)(i); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.23(a)(ii), the Borrower Cash Collateralizes its payment and reimbursement obligations with respect to such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided that (a) the sum of each Non-Defaulting Lender’s Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender or Potential Defaulting Lender, or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make a Loan on the occasion of any Loan Borrowing (other than the Loans made on the Effective Dateany conversion or continuation of a Loan), and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IVthis Agreement (other than, after the First Amendment Effective Date, the representations and warranties set forth in Sections 3.04(b) and 3.06 and, with respect to the representation and warranty set forth in Section 3.04(b) made on the First Amendment Effective Date, assuming that such representation and warranty excludes any event, condition or circumstance that is disclosed in (i) Parent’s unaudited quarterly financial statements for the fiscal quarter ended March 31, 20152017 filed on Form 10-Q with the SEC or (ii) any publicly available press releases of each Loan Party Parent or publicly available filings by Parent with the SEC released or filed prior to the date hereofFirst Amendment Effective Date, in each of case excluding any such disclosure under the caption “Risk Factors” and any other disclosure that is cautionary, predictive or forward-looking in nature) and the other Loan Documents to which it is a party, shall be true and correct in all material respects (or, in the case of any such representation or warranty under this Agreement already qualified as to materiality, in all respects) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if except in the case of any such representation or and warranty is that expressly stated relates to a prior date, in which case such representation and warranty shall have been made as of a specific date, true and correct in all material respects on and as of such prior date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing. Each Borrowing (other than any conversion or continuation of a Loan) and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the applicable Borrower on the date thereof as to that the matters conditions specified in clauses paragraphs (a) and (b) of this Section 4.02 have been satisfied. Notwithstanding the immediately preceding sentence. In addition foregoing, in the case of any Limited Conditionality Acquisition Incremental Term Loans, the condition set forth in paragraphs (a) or (b) of this Section may, to the other conditions precedent herein extent permitted by Section 2.21(c), be waived or modified as set forth, if any Revolving Credit Lender becomes, and during forth in the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20applicable Incremental Facility Agreement.
Appears in 1 contract
Samples: Credit Agreement (TripAdvisor, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct in all material respects on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if any except to the extent such representation or warranty is representations and warranties expressly stated relate to an earlier date, in which case such representations and warranties shall have been made as of a specific date, true and correct in all material respects as of such earlier date); and, except that such materiality qualifier shall not be applicable to representations and warranties that are already qualified or modified by materiality in the text thereof.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance of any Letter of Credit, Availability is not less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue or cause to be required to issue issued any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or issuing or causing to amend be issued any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (Us Concrete Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew renew, or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall must be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal renewal, or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty that by its terms is expressly stated to have been made as of a specific date, specified date will be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty that is subject to any materiality qualifier will be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal renewal, or extension of such Letter of Credit, as applicable, (i) no Default shall may have occurred and be continuingcontinuing and (ii) no Protective Advance may be outstanding.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal, or extension of any Letter of Credit, each of Availability and Combined Borrowing Base Availability is not less than zero ($0.00). Each Borrowing and each issuance, amendment, renewal renewal, or extension of a Letter of Credit shall will be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses (a) and (b) of this Section. Notwithstanding the immediately preceding sentence. In addition failure to satisfy the other conditions precedent herein set forthforth in Section 4.02(a) or Section 4.02(b), if any Revolving Credit Lender becomes, and during unless otherwise directed by the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but will have no obligation to, continue to make Loans and an Issuing Lender Bank may, but will not have no obligation to, issue, amend, renew, or extend, or cause to be required to issue issued, amended, renewed, or extended, any Letter of Credit for the ratable account and risk of the Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing, or extending, or causing the issuance, amendment, renewal, or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. (a) The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)a Loan, and of the Issuing Lender Banks to issue, amendincrease, renew or extend any Letter of Credit (other than the Letters of Credit issued Credit, on the Effective Date and excluding date of the continuation or conversion consummation of any Borrowing), are additionally the Specified Acquisition (the “Specified Acquisition Closing Date”) is subject solely to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(ai) Each of the Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (in the case of the Acquisition Agreement Representations, to the extent required pursuant to the definition thereof) at the time of, and after giving effect to, the making of the Loans on such date.
(ii) The Administrative Agent shall have received a solvency certificate from the Chief Financial Officer of the Company substantially in the form set forth in Exhibit K hereto.
(iii) The Specified Acquisition shall have been consummated substantially concurrently with the making of the Loans on such date, in all material respects in accordance with the Acquisition Agreement after giving effect to any modifications, amendments, supplements, consents or waivers, other than those modifications, amendments, supplements, consents or waivers by the Company that are materially adverse to JPMorgan Chase Bank, N.A. in its capacity as arranger and lender in connection with the financing for the Specified Acquisition Transactions (in such capacity, the “Specified Acquisition Arranger”) or the Lenders (in their capacities as such) without the Specified Acquisition Arranger’s prior written consent (such consent not to be unreasonably withheld, delayed or conditioned); provided that any change in the Merger Consideration (as defined in the Acquisition Agreement) shall not be deemed to be materially adverse to the interests of the Lenders or the Specified Acquisition Arranger and shall not require the consent of the Specified Acquisition Arranger if such change results in the number of shares of Parent Common Stock (as defined in the Acquisition Agreement) for which each share of Company Common Stock (as defined in the Acquisition Agreement), other than any Exception Shares (as defined in the Acquisition Agreement), may be converted pursuant to the Acquisition Agreement increasing or decreasing by 7.5% or less.
(iv) Since January 16, 2019, no event or events shall have occurred that have had or would reasonably be likely to have, either individually or in the aggregate, a Material Adverse Effect (as defined in the Acquisition Agreement as in effect on January 16, 2019) on First Data.
(v) The Administrative Agent and the Lenders shall have received (Ai) all fees required to be paid under this Agreement on or prior to the Specified Acquisition Closing Date #9168213v14 83 and, to the extent payable to the Lenders under this Agreement or their Affiliates on or prior to the Specified Acquisition Closing Date, all fees required to be paid pursuant to the terms of (A) the Permanent Loan Financing Fee Letter, dated as of January 16, 2019, by and between the Company and the Specified Acquisition Arranger (the “Permanent Financing Fee Letter”) and (B) the Bridge Facility Fee Letter, dated as of January 16, 2019, by and between the Company and the Specified Acquisition Arranger or the definitive documentation in respect of the Bridge Facility (as such term is used in such Bridge Facility Fee Letter), in each case, on or prior to the Specified Acquisition Closing Date, and (Bii) to the extent invoiced at least three business days(3) Business Days prior to the Specified Acquisition Closing Date, expenses required to be paid hereunder on or prior to the Specified Acquisition Closing Date.
(vi) All obligations (other than contingent obligations (including indemnification obligations) that by their terms are to survive the termination of the relevant loan documentation and debt instruments evidencing third party debt) for borrowed money of First Data and its subsidiaries under the instruments set forth on Schedule 4.02(a)(ixvi) shall have been (or substantially concurrently with the making of the Loans on such date shall be) repaid or satisfied and discharged, and in connection therewith all guarantees and liens shall have been released, on or prior to the Specified Acquisition Closing Date.
(vii) The Administrative Agent shall have received a certificate from a responsible officer of the Company certifying as to the satisfaction of the condition precedent contained in Section 4.02(a)(i) (solely with respect to the Specified Representations), (iii) and (iv).
(b) The obligation of each Lender to make a Loan, and of the Issuing Banks to issue, increase, renew or extend any Letter of Credit, other than on the date of the consummation of the Specified Acquisition, is subject to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(i) The representations and warranties of the Borrower Borrowers set forth in Article IVthis Agreement (other than the representations contained in Sections 3.04(a), 3.12(b) and of each Loan Party in each of the other Loan Documents to which it is a party, 3.18) 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 Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and) or the date of issuance, amendment to increase, renewal or extension of such Letter of Credit, as applicable.
(bii) at At the time of and immediately after giving effect to such Loan or the issuance, amendmentamendment to increase, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(iii) In the case of a Loan or Letter of Credit denominated in a Foreign Currency or to a Subsidiary Borrower that is not a Domestic Subsidiary, no law or regulation shall prohibit, and no order, judgment or decree of any Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or any Issuing Bank or any Lender from issuing, renewing, extending or increasing the face amount of or participating in the Letter of Credit requested to be issued, renewed, extended or increased. Each Borrowing Loan and each issuance, amendmentamendment to increase, renewal or extension of a Letter of Credit pursuant to this Section 4.02(b) shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (ai) and (bii) of the immediately preceding sentencethis Section 4.02(b). In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.#9168213v14 84
Appears in 1 contract
Samples: Credit Agreement (Fiserv Inc)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, Availability shall not be less than zero. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a) and (b) and (c) of this Section. Notwithstanding the immediately preceding sentence. In addition failure to satisfy the other conditions precedent herein set forthforth in paragraphs (a) or (b) or (c) of this Section, if any Revolving Credit Lender becomes, and during unless otherwise directed by the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans and the Issuing Lender will not Bank may, but shall have no obligation to, issue, amend, renew or extend, or cause to be required to issue issued, amended, renewed or extended, any Letter of Credit for the ratable account and risk of the Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing or extending, or causing the issuance, amendment, renewal or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) to the representations and warranties extent applicable to such Borrowing, receipt by the Administrative Agent of the Borrower set forth in Article IVa Borrowing Request pursuant to Section 2.03 or, and if applicable, a request for a Letter of each Loan Party in each of the other Loan Documents Credit pursuant to which it is a party, shall be true and correct on and as of the date of Section 2.05(b);
(b) immediately after such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, (ori) the Revolving Credit Exposure will not exceed the Available Commitment, if (ii) with respect to each Lender, such Lender’s Applicable Percentage of the Revolving Credit Exposure will not exceed such Lender’s Revolving Credit Commitment and (iii) the sum of the outstanding amount of the Term Loans and the Revolving Credit Exposure will not exceed the Available Commitment;
(i) the representations and warranties of any Borrower Party set forth in this Agreement and in the other Loan Documents shall be true and correct on and as of the date of such representation Borrowing or warranty is expressly stated the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable; provided, that to have been the extent such representations and warranties were made as of a specific date, the same shall have been true and correct in all material respects as of such specific date and (ii) there are no material adverse changes to its financial condition since the date of delivery of the financial information most recently delivered by the Borrower pursuant to Sections 5.01(a) or (c) that would cause such Borrower Party to be in breach of its obligations pursuant to Section 6.12 as if such obligations were tested as of such date); and;
(bd) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing; provided, however, so long as no Default that could, with the passage of time, become an Event of Default pursuant to Section 7.01(a), (g) or (h) shall exist, this clause (d) shall not prevent the conversion or continuation of existing Loans, but provided further that any Eurodollar Loan during such period shall be allowed only in one-month Interest Periods;
(e) no law or regulation shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued, and no litigation shall be pending or threatened, which does or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain, the making or repayment of the Loans, the issuance of any Letters of Credit or any participations therein or the consummation of the transactions contemplated by this Agreement;
(f) receipt by Administrative Agent of a Compliance Certificate, dated as of such date and signed by a Financial Officer of Borrower, demonstrating compliance with the Financial Covenants determined on a pro-forma basis on such date after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, together with customary supporting documentation and supplemental reporting as agreed upon between the Administrative Agent and Borrower;
(g) receipt by Administrative Agent of a completed Borrowing Base Certificate, setting forth all of the information and certifications required pursuant to Section 5.01(f), dated as of such date;
(h) no event which results in a Material Adverse Effect shall have occurred, as reasonably determined by the Administrative Agent; and
(i) the Administrative Agent shall have received, for its and any other Lender’s account, all fees due and expenses, including the reasonable fees and expenses of Xxxxxxxx & Xxxxxxxx LLP, then due and payable pursuant to the terms of the Loan Documents. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Parties on the date thereof as to the matters specified in clauses (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20.
Appears in 1 contract
Samples: Credit Agreement (Jones Lang LaSalle Income Property Trust, Inc.)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct in all material respects (or in all respects if qualified by material adverse change or other 101 materiality qualifier) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (orapplicable, if any such representation or warranty is expressly unless specifically stated to have been made as of on a specific previous date, in which case such representation and warranty shall be true and correct in all material respects (or in all respects if qualified by material adverse change or other materiality qualifier) as of such date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing.
(c) No law or regulation shall prohibit, and no order, judgment or decree of any Governmental Authority shall enjoin, prohibit or restrain, any Lender from making the requested Loan or the Issuing Bank or any Lender from issuing, renewing, extending or increasing the face amount of or participating in the Letter of Credit requested to be issued, renewed, extended or increased.
(d) The Administrative Agent and, if applicable, the Issuing Lender or the Swing Line Lender shall have received a Borrowing Request or Swing Line Loan Notice, as applicable, in accordance with the requirements hereof.
(e) If the applicable Borrower is a Designated Borrower, then the conditions of Section 2.24 to the designation of such Borrower as a Designated Borrower shall have been met to the satisfaction of the Administrative Agent.
(f) In the case of a Loan or Letter of Credit to be denominated in a Foreign Currency, such currency remains an Eligible Currency. Each Borrowing (provided that a conversion or a continuation of a Borrowing shall not constitute a “Borrowing” for purposes of this Section) and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a) and (b) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Samples: Credit Agreement (Bruker Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto except to the extent that such representations and warranties specifically relate to an earlier date, in which case such representations and warranties specifically refer to such earlier date;
(c) since the date of the financial statements of the Borrower described in Section 4.4, there shall have occurred been no change which has had or could reasonably be expected to have a Material Adverse Effect;
(d) the Borrower shall have delivered the required Notice of Borrowing;
(e) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, the Issuing Bank will not be continuingrequired to issue any Letter of Credit or to extend, renewe or amend any outstanding Letter of Credit and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Bank or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is fully covered or eliminated by the Borrower Cash Collateralizing the obligations of the Borrower in respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender; provided that no such Cash Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Samples: Revolving Credit Agreement (Walter Investment Management Corp)
Each Credit Event. The obligation of each Lender to make any Loan (other than the Loans made on the Effective Date)issue, and of the Issuing Lender to issuecontinue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are is additionally subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower Obligors set forth in Article IVthis Agreement, the Pledge Agreement and of each Loan Party the Collateral Account Control Agreement (other than, at any time after the Effective Date, in each of the other Loan Documents to which it is a party, Section 4.04(b)) shall be true and correct on and as of the date of such Loan or the date of issuance, continuation, amendment, renewal or extension of such Letter of Credit, as applicable Credit (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); and;
(b) at the time of and immediately after giving effect to such Loan or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing;
(c) in the case of any Specified Alternative Currency Letter of Credit, receipt by the Administrative Agent of a request for offers as required by Section 2.04;
(d) at the time of and immediately after giving effect to the issuance, amendment, renewal or extension of such Letter of Credit, no CoC Suspension Event shall have occurred and be continuing which has not been consented to or waived by the Required Lenders;
(e) at the time of and immediately after giving effect to the issuance, amendment, renewal or extension of such Letter of Credit, the Borrowing Base of the Specified Account Party requesting issuance, continuation, amendment, renewal or extension of any Letter Credit shall not be less than the aggregate face amount of all the Letters of Credit issued on behalf of such Specified Account Party; and
(f) solely with respect to the issuance, amendment, renewal or extension of any Letter of Credit for the account of any Swiss Account Party, such Swiss Account Party is in compliance with the Swiss Withholding Tax Rules at the time of and immediately after giving effect to the issuance, amendment, renewal or extension of such Letter of Credit, provided that a Swiss Account Party shall not be in breach of this condition if its number of creditors in respect of the Swiss Withholding Tax Rules is exceeded solely by reason of (i) a failure by one or more Lenders to comply with their obligations under Section 10.04(i) or (ii) one or more Lenders misrepresenting its status as a Qualifying Bank or Permitted Non-Qualifying Lender. For purposes of determining the total number of creditors which are not Qualifying Banks under this Section 4.02(f), the Swiss Account Parties shall assume that there are ten (10) Lenders that are not Qualifying Banks under this Agreement. Each Borrowing and each issuance, continuation, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Obligors on the date thereof as to the matters specified in clauses (a), (b) and (bf) of the immediately preceding sentence. In addition Upon the occurrence of a CoC Suspension Event which is continuing that has not been consented to or waived by the other conditions precedent herein set forthRequired Lenders, if (i) neither the Administrative Agent, any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not nor any Lender shall be required to issue issue, continue, amend, renew or extend any Letter of Credit Credit, (ii) the Administrative Agent, acting individually or at the direction of the relevant Lenders (or, in the case of a Fronted Letter of Credit, at the direction of the Required Lenders) shall be entitled to amend issue a notice of non-extension under any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, Credit in accordance with Section 2.20the terms of such Letter of Credit and (iii) no Letter of Credit hereunder may remain outstanding following the 180th day thereafter, unless Cash Collateralized in an amount equal to 100% of the Dollar Equivalent of the aggregate LC Exposure in respect of such Letter of Credit.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto;
(c) since the date of the financial statements of the Borrower described in Section 4.4, there shall have occurred and been no change which has had or could reasonably be continuingexpected to have a Material Adverse Effect; and
(d) the Borrower shall have delivered the required Notice of Revolving Borrowing, Notice of Swingline Borrowing and/or Notice of Term Loan Borrowing, as applicable. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentencethis Section 3.2. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, is a Defaulting Lender at the time of and immediately after giving effect to such Borrowing or a Potential Defaulting Lenderthe issuance, amendment, renewal or extension of such Letter of Credit, as applicable, (i) the Issuing Lender Bank will not be required to issue any Letter of Credit or to extend, renew or amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, Bank is satisfied that any exposure that would result therefrom is eliminated or fully covered or eliminated by the Commitments Borrower Cash Collateralizing the obligations of the Non-Borrower in respect of such Letter of Credit in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lenders Lender in respect of such Letter of Credit, or by Cash Collateralization or a combination thereof makes other arrangements satisfactory to the Issuer Administrative Agent and the Issuing Bank in their sole discretion to Swingline Lender will not be required to make Swingline Loans or to extend, renew or amend any outstanding Swingline Loan, unless the Swingline Lender is satisfied that any exposure that would result therefrom is fully covered or eliminated by the Borrower Cash Collateralizing the obligations of the Borrower in respect of such Swingline Loan in an amount at least equal to the aggregate amount of the obligations (contingent or otherwise) of such Defaulting Lender in respect of such Swingline Loan, or makes other arrangements satisfactory to the Administrative Agent and the Swingline Lender in its their sole discretiondiscretion to protect them against the risk of non-payment by such Defaulting Lender; provided that, in each either case, in accordance with Section 2.20no such Cash Collateralization will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Easylink Services International Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); andapplicable.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall have occurred and be continuing
(c) The Borrower shall demonstrate, to the Administrative Agent’s reasonable satisfaction, that, immediately before and after giving effect to the applicable Loan or Letter of Credit extension, issuance, amendment or renewal, the sum of the Available Revolving Commitment (including, for purposes hereof, Swingline Exposure as part of the Revolving Credit Exposure), giving pro forma effect to the applicable Loan or Letter of Credit plus the Loan Parties’ cash and cash equivalents that are free of Liens and otherwise unencumbered and unrestricted (provided, that proceeds of a requested Loan shall not be included in any determination of unencumbered and unrestricted cash for purposes hereof) to be less than $50,000,000. For the avoidance of doubt, if the above conditions are not satisfied as of the end of an Interest Period, a Eurodollar Borrowing may be converted and continued as an ABR Borrowing as provided in Section 2.08(e). Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20this Section.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by an Material Adverse Effect or other materiality, in which case such representations and warranties shall be true and correct in all respects), on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto except to the extent any such representations and warranties are expressly limited to an earlier date, in which case, on and as of the date of such Borrowing or the date of issuance, amendment or extension of such Letter of Credit, as applicable, such representations and warranties shall continue to be true and correct as of such specified earlier date; and
(c) the Borrower shall have occurred delivered the required Notice of Borrowing. In addition to the other conditions precedent herein set forth, if any Lender is a Defaulting Lender or a Potential Defaulting Lender at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, set forth in this Section 3.2, the Issuing Bank will not be continuingrequired to issue, amend or increase any Letter of Credit and the Swingline Lender will not be required to make any Swingline Loans, unless they are satisfied that 100% of the related LC Exposure and Swingline Exposure is fully covered or eliminated by any combination satisfactory to the Issuing Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the LC Exposure and Swingline Exposure of such Defaulting Lender is reallocated, as to outstanding and future Letters of Credit, to the Non-Defaulting Lenders as provided in Section 2.26(a)(1); and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 2.26(a)(2), the Borrower Cash Collateralizes its reimbursement obligations in respect of such Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the Borrower makes other arrangements satisfactory to the Administrative Agent, the Issuing Bank and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, however, that (a) the sum of each Non-Defaulting Lender’s total Revolving Credit Exposure may not in any event exceed the Revolving Commitment of such Non-Defaulting Lender, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a waiver or release of any claim the Borrower, the Administrative Agent, the Issuing Bank, the Swingline Lender or any other Lender may have against such Defaulting Lender, or cause such Defaulting Lender to be a Non-Defaulting Lender. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in clauses (a), (b) and (bc) of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lender, the Issuing Lender will not be required to issue any Letter of Credit or to amend any outstanding Letter of Credit, and the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with this Section 2.203.2.
Appears in 1 contract
Samples: Revolving Credit Agreement (International Speedway Corp)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew renew, or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a1) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall must be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal renewal, or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty that by its terms is expressly stated to have been made as of a specific date, specified date will be required to be true and correct only as of such specified date, and that any representation or warranty that is subject to any materiality qualifier will be required to be true and correct in all respects); and.
(b2) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal renewal, or extension of such Letter of Credit, as applicable, (i) no Default shall may have occurred and be continuingcontinuing and (ii) no Protective Advance may be outstanding.
(3) After giving effect to any Borrowing or the issuance, amendment, renewal, or extension of any Letter of Credit, Availability is not less than zero ($0.00).
(4) No event may occurred and no condition may exist that has or could be reasonably expected to have a Material Adverse Effect. Each Borrowing and each issuance, amendment, renewal renewal, or extension of a Letter of Credit shall will be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses (a) and (b) of this Section. Notwithstanding the immediately preceding sentence. In addition failure to satisfy the other conditions precedent herein set forthforth in Section 4.02(a) or Section 4.02(b), if any Revolving Credit Lender becomes, and during unless otherwise directed by the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but will have no obligation to, continue to make Loans and an Issuing Lender Bank may, but will not have no obligation to, issue, amend, renew, or extend, or cause to be required to issue issued, amended, renewed, or extended, any Letter of Credit for the ratable account and risk of the Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending, renewing, or extending, or causing the issuance, amendment, renewal, or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Samples: Credit Agreement (Allbirds, Inc.)
Each Credit Event. The obligation of (x) each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the (y) each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Borrowers set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, this Agreement shall be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all material respects only as of such specified date); and, and that any representation or warranty which is subject to any materiality qualifier shall be required to be true and correct in all respects.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) After giving effect to any Borrowing or the issuance, amendment, renewal or extension of any Letter of Credit, the Borrowers shall be in compliance with the Revolving Exposure Limitations. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses (a), (b) and (c) of this Section 4.02. Notwithstanding the failure to satisfy the conditions precedent set forth in clauses (a) or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make (or authorize the European Administrative Agent to make) Loans and an Issuing Lender will not Bank may, but shall have no obligation to, issue or cause to be required issued (or amend, renew, or extend, or cause to issue be amended, renewed, or extended) any Letter of Credit for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or issuing or causing to amend be issued (or amending, renewing, or extending, or causing to be amended, renewed, or extended) any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date), occasion of any Borrowing and of the Issuing Lender Banks to issue, amend, renew or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing), are additionally is subject to the satisfaction of the following conditions:
(a) the representations and warranties of the Borrower set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct on and as of the date of such Loan or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such date); and
(b) at the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default or Event of Default shall exist;
(b) at the time of and immediately after giving effect to such Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing or the date of issuance, amendment, extension or renewal of such Letter of Credit, in each case before and after giving effect thereto, other than representations or warranties which relate to an earlier date, in which case such representations and warranties shall have occurred been true and be continuingcorrect on such earlier date;
(c) the applicable Borrower shall have delivered the required Notice of US Revolving Borrowing or Notice of Canadian Prime Rate Borrowing; and
(d) the Administrative Agent shall have received such other documents, certificates, information or legal opinions as the Administrative Agent or the Required Lenders may reasonably request, all in form and substance reasonably satisfactory to the Administrative Agent or the Required Lenders. Each Borrowing and each issuance, amendment, extension or renewal or extension of a any Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (bc) of the immediately preceding sentencethis Section 5.2. In addition to the other conditions precedent herein set forth, if any Revolving Credit Extended US Lender becomes, and during the period it remains, is a Defaulting Lender or a Potential Defaulting LenderLender at the time of and immediately after giving effect to such Borrowing or the issuance, the Issuing Lender will not be required to issue any Letter amendment, renewal or extension of Credit or to amend any outstanding such Letter of Credit, as applicable, set forth in this Section 5.2, no US Issuing Bank will be required to issue, amend or increase any US Letter of Credit and the Swingline Lender will not be required to make any Swingline LoanLoans, unless they are satisfied that 100% of the related US LC Exposure and Swingline Exposure is fully covered or eliminated by any combination satisfactory to the relevant US Issuing Lender Bank or the Swingline Lender, as the case may be, of the following:
(i) in the case of a Defaulting Lender, the US LC Exposure and Swingline Exposure of such Defaulting Lender is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments reallocated, as to outstanding and future US Letters of Credit and Swingline Exposure, to the Non-Defaulting Lenders as provided in Section 4.19(a)(1) above; and
(ii) in the case of a Defaulting Lender or a Potential Defaulting Lender, without limiting the provisions of Section 4.19(a)(2), the US Borrowers Cash Collateralize their reimbursement obligations in respect of such US Letter of Credit or Swingline Loan in an amount at least equal to the aggregate amount of the unreallocated obligations (contingent or otherwise) of such Defaulting Lender or Potential Defaulting Lender in respect of such Letter of Credit or Swingline Loan, or the US Borrowers make other arrangements satisfactory to the Administrative Agent, the US Issuing Banks and the Swingline Lender, as the case may be, in their sole discretion to protect them against the risk of non-payment by such Defaulting Lender or Potential Defaulting Lender; provided, however that (a) the sum of each Non-Defaulting Lender’s Extended Revolving Credit Exposure may not in any event exceed its Extended Revolving Commitment, and (b) neither any such reallocation nor any payment by a Non-Defaulting Lender pursuant thereto nor any such Cash Collateralization or reduction will constitute a combination thereof satisfactory to waiver or release of any claim the Issuer or US Borrowers, the Administrative Agent, any US Issuing Bank, the Swingline Lender in its sole discretionor any other Extended US Lender may have against such Defaulting Lender or Potential Defaulting Lender, in each case, in accordance with Section 2.20or cause such Defaulting Lender or Potential Defaulting Lender to be a Non-Defaulting Lender.
Appears in 1 contract
Samples: Revolving Credit Agreement (Macquarie Infrastructure CO LLC)
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew or extend any Letter of Credit (other than Credit, is subject to receipt of the Letters of Credit issued on the Effective Date request therefor in accordance herewith and excluding the continuation or conversion of any Borrowing), are additionally subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower each Loan Party set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, party shall be true and correct in all material respects (other than representations and warranties that are subject to a Material Adverse Effect or a 88 4145-1594-0167.14145-1594-0167.7 materiality qualifier, in which case such representations and warranties shall be true and correct) on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal or extension of such Letter of Credit, as applicable applicable, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (orother than representations and warranties that were subject to a Material Adverse Effect or a materiality qualifier, if any in which case such representation or warranty is expressly stated to representations and warranties shall have been made as of a specific date, true and correct) in each case as of such earlier date); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal or extension of such Letter of Credit, as applicable, no Default shall have occurred and be continuing.
(c) With respect to the issuance of any Letter of Credit or the making of any Swingline Loan, there is no Defaulting Lender at the time such Swingline Loan is to be made or Letter of Credit is to be issued, unless the L/C Exposure or Swingline Exposure of such Defaulting Lender is re-allocated to non-Defaulting Lenders and/or the Borrower has Cash Collateralized or made other arrangements with respect to any such non-reallocated Exposure of such Defaulting Lender all in accordance with Section 2.22. Each Borrowing and each issuance, amendment, renewal or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by STX and the Borrower on the date thereof as to the matters specified in clauses (a) and (b) of this Section 4.02. For purposes of the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting Lenderforegoing, the Issuing Lender will term “Borrowing” shall not be required to issue any Letter include the continuation or conversion of Credit or to amend any outstanding Letter Loans in which the aggregate amount of Credit, and the Swingline Lender will such Loans is not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20being increased.
Appears in 1 contract
Each Credit Event. The obligation of each Lender to make any a Loan (other than the Loans made on the Effective Date)occasion of any Borrowing, and of the each Issuing Lender Bank to issue, amend, renew amend or extend any Letter of Credit (other than the Letters of Credit issued on the Effective Date and excluding the continuation or conversion of any Borrowing)Credit, are additionally is subject to the satisfaction of the following conditions:
(a) the The representations and warranties of the Borrower Loan Parties set forth in Article IV, and of each Loan Party in each of the other Loan Documents to which it is a party, shall be true and correct in all material respects with the same effect as though made on and as of the date of such Loan Borrowing or the date of issuance, amendment, renewal amendment or extension of such Letter of Credit, as applicable (or, if it being understood and agreed that any such representation or warranty which by its terms is expressly stated to have been made as of a specific date, specified date shall be required to be true and correct in all material respects only as of such specified date, and that any representation or warranty that is subject to any materiality qualifier shall be required to be true and correct in all respects); and.
(b) at At the time of and immediately after giving effect to such Loan Borrowing or the issuance, amendment, renewal amendment or extension of such Letter of Credit, as applicable, (i) no Default or Event of Default shall have occurred and be continuing, and (ii) no Protective Advance shall be outstanding.
(c) After giving effect to any Borrowing or the issuance, amendment or extension of any Letter of Credit, Availability shall not be less than zero. Each Borrowing and each issuance, amendment, renewal amendment or extension of a Letter of Credit shall be deemed to constitute a representation and warranty by the Borrower Borrowers on the date thereof as to the matters specified in clauses paragraphs (a), (b) and (c) of this Section. Notwithstanding the failure to satisfy the conditions precedent set forth in paragraphs (a) and or (b) of this Section, unless otherwise directed by the immediately preceding sentence. In addition to the other conditions precedent herein set forth, if any Revolving Credit Lender becomes, and during the period it remains, a Defaulting Lender or a Potential Defaulting LenderRequired Lenders, the Administrative Agent may, but shall have no obligation to, continue to make Loans requested by the Borrower Representative and an Issuing Lender will not Bank may, but shall have no obligation to, issue, amend or extend, or cause to be required to issue issued, amended or extended, any Letter of Credit requested by the Borrower Representative for the ratable account and risk of Lenders from time to time if the Administrative Agent believes that making such Loans or to amend issuing, amending or extending, or causing the issuance, amendment or extension of, any outstanding such Letter of Credit, and Credit is in the Swingline Lender will not be required to make any Swingline Loan, unless the Issuing Lender or the Swingline Lender, as the case may be, is satisfied that any exposure that would result therefrom is eliminated or fully covered by the Commitments best interests of the Non-Defaulting Lenders or by Cash Collateralization or a combination thereof satisfactory to the Issuer or the Swingline Lender in its sole discretion, in each case, in accordance with Section 2.20Lenders.
Appears in 1 contract
