Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect of the initial Borrowing) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Period: (a) in the case of the initial Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date; (b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15); (c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied; (d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected; (e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02; (f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency; (g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied; (h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance; (j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied; (k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and (l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advance.
Appears in 2 contracts
Sources: Credit and Security Agreement (TCW Direct Lending VII LLC), Credit and Security Agreement (TCW Direct Lending VII LLC)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect make, continue or convert Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Term Lender to continue or convert Term Facility Advances, or the obligation of the Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of a Borrowing pursuant to Section 2.3(a) or the initial Borrowing hereundercontinuation or conversion of an Advance pursuant to Section 2.3(b), before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing, conversion or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no DefaultAfter giving effect to (A) a requested Borrowing, Event conversion or continuation of Default or Early Amortization Event shall have occurred a Revolving Facility Advance, the Unused Revolving Facility Commitment is not less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and be continuing at (D) a requested Borrowing consisting of an Acceptance, neither the time of Unused Revolving Facility Commitment nor the making of such Advance or shall result upon the making of such AdvanceUnused Acceptance Sublimit is less than zero;
(jiii) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event No event has occurred and is continuing, or would result from such Borrowing, conversion or continuation, which constitutes an Event of Default or Default;
(iv) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lv) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceBorrowing.
Appears in 2 contracts
Sources: Loan Agreement (Cutter & Buck Inc), Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is a Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Bank to make each Advance a Loan to Borrower (including any such Advance in respect of including, without limitation, the initial BorrowingLoan) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided further conditions precedent that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Period:
(a) in the case of the initial Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to date of such Loan, the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received from Borrower a Notice of Borrowing with respect to such Advance delivered Borrowing, Notice of Swing Loan or a Competitive Bid Confirmation, as the case may be, in accordance with Section 2.02;
the terms of this Agreement and (fb) immediately after on the making date of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateLoan, the Interest Coverage Test following statements shall be satisfied;
true and correct (h) and each of the giving of any applicable Notice of Borrowing, Notice of Swing Loan or Competitive Bid Confirmation, as the case may be, and the acceptance by Borrower of the proceeds of such Loan, shall constitute a representation and warranty by Borrower that on the date of such Loan such statements are true and correct):
(i) The representations and warranties of the Borrower contained in Section 7.01 of this Agreement and the other Facility Documents shall be are true and correct in all material respects on and as of the date of such Borrowing Date Loan (except to the extent such for (1) those representations and or warranties or parts thereof that, by their terms, expressly relate solely to any earlier a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier specific date; and (2) if such Loan is not a part of the initial Borrowing hereunder and if at the time of such Loan (I) all senior unsecured long-term debt of the Borrower is rated BBB or higher by S&P or is rated Baa2 or higher by Moody's, (II) the Borrower is not Unrated and (III) either (x) all senior unsecured long-term debt of the Borrower is rated BBB+ or higher by S&P and is rated Baal or higher by Moody's or (y) the Borrower is not on credit wat▇▇ ▇▇▇▇ negative implications with S&P or Moody's (and no similar comment has been made by ▇&▇ ▇▇ Moody's regarding a potential downgrade of any o▇ ▇▇▇ ▇orrower's debt ratings), the representation and warranty set forth in clause (i) of Section 7.01(j)), before and after giving effect to such Loan and to any other Loans to be made on such date, and to the application of the proceeds from such Loan and such other Loans, as though made on and as of such date;
(iii) no Default, Borrower shall be in compliance with and shall have performed all agreements and covenants made by it under this Agreement; and
(iii) No Default or Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of or would result from such Advance Loan or shall result upon the making of any other Loan to be made on such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advancedate.
Appears in 1 contract
Sources: Revolving Credit Agreement (Reliant Energy Resources Corp)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders Agent, the Floor Plan Agent or a Lender) to any Intercreditor Agreement has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Agent or the Floor Plan Agent to such other party and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance to be made by it (including any such Advance in respect of the initial BorrowingAdvance and any Swingline Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that with respect the conditions described in clauses (c) and (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be satisfied if the proceeds of the Borrowing are used to any fund Revolving Borrowing, such Borrowing Date shall occur prior Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower or to fund the Revolving Reserve Account to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodextent required under Section 8.04:
(a) in the case of the initial Borrowing hereunderAdministrative Agent (and, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to any Swingline Advance, the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(cSwingline Lender) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.02;
(fb) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest each Coverage Test shall be satisfiedsatisfied (or in the case of the Interest Coverage Ratio Test, was satisfied as of the most recent Monthly Reporting Date) (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing);
(hc) each of the representations and warranties of the Borrower Borrower, the Parent and the Collateral Manager contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if made on such date);; 750499896 22723957
(id) no Default, Event of Default Default, Potential Collateral Manager Termination Event or Early Amortization Collateral Manager Termination Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(le) the provisions of Section 10.02 Reinvestment Period shall not have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advanceterminated.
Appears in 1 contract
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect make, continue or convert Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Term Lender to continue or convert Term Facility Advances, or the obligation of the Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of a Borrowing pursuant to Section 2.3(a) or the initial Borrowing hereundercontinuation or conversion of an Advance pursuant to Section 2.3(b), before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing, conversion or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no DefaultAfter giving effect to (A) a requested Borrowing, Event conversion or continuation of Default or Early Amortization Event shall have occurred a Revolving Facility Advance, neither the Unused Revolving Facility Advance Sublimit nor the Unused Revolving Facility Commitment is less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; and be continuing at (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the time of Unused Revolving Facility Commitment nor the making of such Advance or shall result upon the making of such AdvanceUnused SLC Sublimit is less than zero;
(jiii) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event No event has occurred and is continuing, or would result from such Borrowing, conversion or continuation, which constitutes an Event of Default or Default;
(iv) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lv) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceBorrowing.
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders Agent, the Floor Plan Agent or a Lender) to any intercreditor agreement has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Agent or the Floor Plan Agent to such other party and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is a Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders Agent, the Floor Plan Agent or a Lender) to any Iintercreditor Aagreement has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Agent or the Floor Plan Agent to such other party and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect make, continue or convert Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of a Borrowing pursuant to Section 2.3(a) or the initial Borrowing hereundercontinuation or conversion of an Advance pursuant to Section 2.3(b), before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing, conversion or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no Default, Event of Default or Early Amortization Event shall have occurred The Security Documents continue in full force and be continuing at the time effect to secure all Obligations of the making of such Advance or shall result upon the making of such AdvanceBorrower under this Agreement and any other Loan Documents;
(jiii) no Low Diversity Event has occurred The Borrower warrants and is continuing at represents to the time Lenders that the only encumbrances and other matters of record affecting the Collateral as of the making date of such Advance or, if a Low Diversity Event has occurred and is continuing at this Agreement are those which were of record on the time date the existing UCC filings were placed of the making of such Advance, the Low Diversity Threshold is satisfiedrecord or those which are Permitted Liens;
(kiv) only in After giving effect to (A) a requested Borrowing, conversion or continuation of a Revolving Facility Advance, neither the case Unused Revolving Facility Commitment nor the Borrowing Base will be less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and (D) a requested Borrowing consisting of an Advance used for other Acceptance, neither the Unused Revolving Facility Commitment nor the Unused Acceptance Sublimit is less than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event zero;
(v) No event has occurred and is continuing, or would result from such Borrowing, conversion or continuation, which constitutes an Event of Default or Default;
(vi) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lvii) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceBorrowing.
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect or continue Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of the initial a Borrowing hereunderpursuant to Section 2.3, before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no Default, Event of Default or Early Amortization Event shall have occurred The Security Documents continue in full force and be continuing at the time effect to secure all Obligations of the making of such Advance or shall result upon the making of such AdvanceBorrower under this Agreement and any other Loan Documents;
(jiii) no Low Diversity Event has occurred The Borrower warrants and is continuing at represents to the time Lenders that the only encumbrances and other matters of record affecting the Collateral as of the making date of such Advance or, if a Low Diversity Event has occurred and is continuing at this Agreement are those which were of record on the time date the existing UCC filings were placed of the making of such Advance, the Low Diversity Threshold is satisfiedrecord or those which are Permitted Liens;
(kiv) only in After giving effect to (A) a requested Borrowing or continuation of a Revolving Facility Advance, neither the case Unused Revolving Facility Commitment nor the Borrowing Base will be less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and (D) a requested Borrowing consisting of an Advance used for other Acceptance, neither the Unused Revolving Facility Commitment nor the Unused Acceptance Sublimit is less than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event zero;
(v) No event has occurred and is continuing, or would result from such Borrowing or continuation, which constitutes an Event of Default or Default;
(vi) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lvii) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advance.Borrowing. ARTICLE IV
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)