Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Integrated Orthopedics Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated in SECTION 7.1 (unless waived pursuant to Section 9.12(a)); provided, however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, 3.2 if the Closing Date and Administrative Agent will not be obligated to issue any LC, as the case may be, unless a Borrowing Date occur on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the All representations and warranties of any Company or any Guarantor set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are be true and correct in all respects. Each respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Advance Models in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated Agents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Asset identified in this Agreementthe Borrowing Base Certificate, the Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(h) Each Current Project shall (i) be a Project subject to a Subject Fund, (ii) satisfy (x) the Eligibility Representations and time is (y) the objective credit requirements of the essence applicable Subject Fund, or otherwise be identified as a Watched System in the Borrowing Base Certificate and (iii) be fully funded by the applicable Investor pursuant to the applicable Project Document, [***].
(i) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document in respect of a the Subject Funds and (ii) each thereofCustomer Agreement, in each case with respect to a Current Project. Subject [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(j) The requested Borrowing exceeds $5,000,000 or such lesser amount as is remaining under the Commitment.
(k) No Bankruptcy Event shall have occurred with respect to the prior approval of Required Lenders, Lenders may fund SolarCity.
(l) As reasonably requested by any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, butLender for informational purposes only, to the extent permitted by Lawnot otherwise publicly available and in possession of the Borrower or its Affiliates, the same shall Borrower has delivered to such Lender financial statements and/or credit reports with respect to a Current Project with a commercial Host Customer that does not be deemed to be have a waiver publicly available rating from a recognized national rating agency that was current as of the requirement date that each the Customer Agreement corresponding to such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingCurrent Project was executed.
Appears in 1 contract
Sources: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing (including the Initial Borrowing) shall be subject to the satisfaction of the conditions stated set forth in SECTION 7.1 Section 3.01 (to the extent not previously satisfied pursuant to that Section) and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless such further conditions precedent that on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) the following statements shall be true and the Administrative Agent shall have timely received therefor for the account of such Lender (w) a Notice of Borrowing and an Availability Certificate dated the date of such Borrowing, and, in the case of the Availability Certificate, certifying that the Facility Available Amount as of such date (calculated on a pro forma basis after giving effect to such Borrowing) will be greater than or a Notice equal to the Facility Exposure (x) all Deliverables and all items described in the definition of LC “BBA Proposal Package” herein (together to the extent not previously delivered with the applicable LC Agreementrespect to each Borrowing Base Asset pursuant to Section 5.01(k) or this Section 3.02), as (y) in the case may be; of an addition of any Person as an Additional Guarantor, all Guarantor Deliverables (bto the extent not previously delivered pursuant to Section 5.01(k) all or this Section 3.02), and (z) a certificate signed by a Responsible Officer of the Borrower, dated the date of such Borrowing, stating that:
(i) the representations and warranties of any Company or any Guarantor set forth contained in the each Loan Papers Document are true and correct in all material respects (except unless qualified as to the extent that (i) the representations and warranties speak to a specific date materiality or (ii) the facts on Material Adverse Effect, in which case such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material ) on and as of such date, before and after giving effect to the transactions contemplated in this Agreement(A) such Borrowing, and time is (B) in the case of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, the application of the proceeds therefrom, as though made on and as of such date;
(ii) no Default or Event of Default has occurred and is continuing, or would result from (A) such Borrowing or (B) or from the application of the proceeds therefrom; and
(iii) for each Advance, (A) the Facility Available Amount equals or exceeds the Facility Exposure that will be outstanding after giving effect to such Advance, and (B) before and after giving effect to such Advance, the Parent Guarantor shall be in compliance with the covenants contained in Section 5.04; 55 and (b) the Administrative Agent shall have received such other approvals, opinions or documents as any Lender through the Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2Section 7.1, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the LC fronting fees provided for in Section 5.4(b) hereof; (c) all of the representations and warranties of any Company or any Guarantor Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Paperstrue and correct in all material respects as of such earlier date); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the request LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (d) and SECTION 7.2, Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Revolving Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent must have received and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance and such approval has not expired or been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.03;
(c) immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of LC Borrowing);
(together with the applicable LC Agreement), as the case may be; (bd) all each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); ;
(ce) no Material Adverse Default, Event shall have occurred; (d) no Default of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; (e) continuing at the funding time of the making of such Borrowings and issuance Advance or shall result upon the making of such LC, as the case may be, is permitted by Law; and Advance;
(f) upon the reasonable request of Administrative AgentReinvestment Period shall not have terminated; and
(g) after giving effect to such Advance, Borrower shall deliver to Administrative Agent evidence substantiating any the aggregate outstanding principal balance of the matters Advances shall not exceed the sum of:
(i) the Aggregate Net Collateral Balance, minus
(ii) the Minimum Equity Amount, plus
(iii) the aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingPrincipal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender Group (or any member thereof) to make a Loan on the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated occasion of each Borrowing (including the initial Borrowing) or of the Agent to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated cause the Issuing Bank to issue any LCrequested L/C shall be subject to the further conditions precedent that on the date of such Borrowing, or Letter of Credit Request:
(a) the following statements shall be true and the Agent shall have received the notice required by Section 2.2(a), which notice shall be deemed to -------------- be a certification by the Borrower that:
(i) The representations and warranties contained in Section 5.1 ----------- are correct on and as the case may be, unless on of the date of such Borrowing or the issuance of such requested L/C as though made on and as of such date;
(ii) No event has occurred and after giving is continuing, or would result from such Borrowing, or the issuance of the requested L/C, which constitutes an Event of Default or Potential Event of Default;
(iii) Nothing shall have occurred and the Agent shall not have become aware of any fact or condition not previously known, which the Agent shall determine has, or could reasonably be expected to have, a material adverse effect thereto)on the rights or remedies of the Lender Group, or on the ability of the Borrower to perform its obligations to the Lender Group or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, property, assets, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole; and
(iv) The security interests and liens in favor of the case may be: Lender Group are valid, enforceable, and prior to all others' rights and interests, except those the Agent consents to in writing; and
(av) Administrative All Loan Documents are in full force and effect; and
(b) the Agent shall have timely received therefor a Notice of Borrowing such other approvals, opinions or a Notice of LC (together with the applicable LC Agreement), documents as the case Agent may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers reasonably request. The foregoing conditions precedent are true and correct in all material respects (except not conditions to the extent that each Lender (i) the representations and warranties speak to a specific date participating in or reimbursing Agent for such Lender's Pro Rata Share of any drawings under L/Cs or Revolving Loans made by Agent, in each case, as provided herein, or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated participating in or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify reimbursing Swing Line Lender for such Borrowing. Each Notice Lender's Pro Rata Share of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied Swing Line Loan as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingprovided herein.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the -------------------------------------- conditions stated in SECTION Section 7.1 and SECTION 7.2Section 7.2 (as applicable), Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of and Borrowing Base Certificate (each in accordance with Section 2.6(a)) or a Notice of an LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in Section 5.5 hereof; (c) all of the representations and warranties of any Company or any Guarantor Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (cd) no Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) each of the funding of such Borrowings Borrowing and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Distribution to the extent permitted by Section 9.20, Administrative Agent shall have received all such certifications, financial information, and projections as Administrative Agent may reasonably request; and (fh) all matters related to such Borrowing must be satisfactory to Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2Section 7.1, the Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent no Issuing Lender will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) the Administrative Agent or an Issuing Lender (as applicable) shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) the Administrative Agent shall have received (as applicable) the LC fees provided for in Section 5.4 hereof; (c) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; . Each Borrowing Notice and (f) upon LC Request delivered to the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of and the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent Issuing Lenders (as applicable) shall constitute the representation and warranty by Borrower the Borrowers to the Administrative Agent that and the Issuing Lenders that, as of the Borrowing Date or the date of issuance of the LC (as the case may be) the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of the Required Lenders, the Lenders may fund any Borrowing, and Administrative Agent the Issuing Lenders may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless the Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.27.2 (as applicable), Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless UNLESS on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with TOGETHER WITH the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in SECTION 5.5 hereof; (c) all of the representations and warranties of any Company or any Guarantor Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (cd) no change in the financial condition or business of Communications and its Restricted Subsidiaries, any Company, or any other Guarantor which could reasonably be expected to be a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Distribution to the extent permitted by SECTION 9.20, Administrative Agent shall have received all such certifications, financial information, and projections as Administrative Agent may reasonably request; (h) Administrative Agent shall have received, as requested, evidence that the Debt to be incurred as a result of such Borrowing has been incurred or entered into in compliance with the requirements of the Communications Bond Debt, any Exchange Debenture Indenture, and the Certificates of Designation for the Preferred Stock; and (fi) all matters related to such Borrowing must be satisfactory to Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Dobson Communications Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make each Loan (including, to the extent relevant, the initial Loans hereunder) is subject to the satisfaction of the following conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated precedent:
(a) On or prior to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of the making of such Borrowing or issuance (and after giving effect thereto)Loan, as the case may be: (a) Administrative Agent shall have timely received therefor from the Borrower a Notice of Borrowing or a Notice of LC (together in accordance with the applicable LC terms of this Agreement), as the case may be; .
(b) all of the The representations and warranties of any Company or any Guarantor set forth the Borrower contained in Section 6.1 of this Agreement and in the other Loan Papers are Documents shall be true and correct in all material respects on and as of the date of such Loan (except for those representations or warranties or parts thereof that, by their terms, expressly relate solely to a specific date, in which case such representations and warranties shall be true and correct in all material respects as of such specific date and, except at any time after the extent that (i) Closing Date, the representations and warranties speak contained in Sections 6.1(j) and (k)), before and after giving effect to a specific date or (ii) such Loan, and to the facts application of the proceeds therefrom, as though made on which and as of such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); date.
(c) no Material Adverse Event shall have occurred; (d) no No Default or Potential Event of Default shall have occurred and be continuing; continuing or would result from such Loan.
(d) The Administrative Agent having received satisfactory evidence that (i) an aggregate principal amount outstanding under the Existing Credit Agreement shall have been repaid (or the proceeds of the Loans shall be applied to pay an aggregate principal amount under the Existing Credit Agreement) in the principal amount of the Loans being requested on the date of such Loan and, if all outstanding amounts under the Existing Credit Agreement are being repaid in full, the Existing Credit Agreement shall have been terminated and (ii) satisfactory arrangements shall have been made for the termination of all liens granted in connection with the amounts being repaid under the Existing Credit Agreement and, if all outstanding amounts under the Existing Credit Agreement are being repaid in full, all liens granted in connection with the Existing Credit Agreement shall have been terminated.
(e) The Administrative Agent having received general mortgage bonds in an aggregate principal amount equal to at least the funding aggregate principal amount of the Loans being requested on the date of such Borrowings Loan and issuance an opinion of such LCcounsel to the Borrower, as in form and substance reasonably satisfactory to the case may beAdministrative Agent, is permitted by Law; in respect of the Collateral, and all documents and instruments required to create a perfected security interest therein, prior and superior in right to any other Person, shall have been executed and be in proper form for filing.
(f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any Each of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each giving of any applicable Notice of Borrowing and LC Agreement delivered to Administrative Agent or the acceptance by the Borrower of the proceeds of each Borrowing shall constitute the a representation and warranty by the Borrower to Administrative Agent that on the date of such Loan that the statements above are true and correct in all respects. Each condition precedent conditions contained in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being Section 5.2 have been satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Credit Agreement (Centerpoint Energy Houston Electric LLC)
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make each Loan shall be subject to the following conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless precedent that on the date of such the Borrowing or issuance (and after giving effect thereto), as consisting of the case may be: Loans then being made by the Banks (a) Administrative the following statements shall be true and the Agent and each Bank shall have timely received therefor an Officers' Certificate requesting such Borrowing (a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b"Request for Borrowing") all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent stating that (i) the representations and warranties speak to a specific contained in Article 5, in Section 7.14 and in the Security Documents are true on and as of the date or of such Borrowing with the same effect as though such representations and warranties had been made on and as of such Borrowing, (ii) the facts Creditors have a valid, equal and ratable perfected first priority Security Interest in the Collateral, subject only to Permitted Liens, (iii) there exists on which the date of such representations Borrowing no Event of Default or Default, (iv) since April 30, 1997, no material adverse change has occurred with respect to the business, prospects, earnings, properties or condition, financial or otherwise, of PHI or PHI and warranties are based have been changed the PHI Subsidiaries taken as a whole (including, without limitation, any material downward valuation by transactions contemplated PHI or permitted any PHI Subsidiary of the Aviation Units, as such term is defined in the PHI Loan Agreement, or any determination by PHI or any PHI Subsidiary that a significant portion of its Receivables, as such term is defined in the PHI Loan Agreement, is uncollectible), (v) since the Effective Date no material adverse change has occurred with respect to the business, prospects, earnings, properties or condition, financial or otherwise, of the Company or the Company and its Subsidiaries taken as a whole (including, without limitation, any material downward valuation by the Loan PapersCompany of the Aviation Units or any determination by the Company that a significant portion of its Receivables is uncollectible); , and (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (evi) the funding of such Borrowings business and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any operations of the matters in Company and all of the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in Subsidiaries as conducted at all respects. Each condition precedent in this Agreement is material times relevant to the transactions contemplated hereby to and including the close of business on the date of such Borrowing have been and are in this Agreementcompliance with applicable state and Federal laws, regulations and time is orders affecting the Company and each Subsidiary and its business and operations, or any of them, (b) for each Borrowing, the Agent and each Bank shall have received a Borrowing Base Certificate dated as of the essence in respect date of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any such Borrowing, and Administrative (c) the Agent shall have received such other approvals, opinions or documents as the Agent, or any Bank through the Agent, may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make Term Loans on each Credit Date (including the Effective Date) is subject to the satisfaction (or waiver) of the following further conditions stated precedent:
(a) [Reserved].
(b) The Borrower shall have delivered to the Administrative Agent a duly executed and completed Borrowing Request in SECTION 7.1 accordance with Section 2.02.
(c) The Collateral Agent, for the benefit of the Secured Parties, shall have valid and SECTION 7.2perfected Liens on all Collateral, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowingthe extent contemplated hereby, and Administrative Agent will not pursuant to the other Loan Documents, including the applicable DIP Financing Order.
(d) The Loan Parties shall have complied and shall be obligated to issue any LCin compliance, in each case, in all material respects, with the Interim DIP Financing Order and the Final DIP Financing Order, as the case may be, unless on the date .
(e) The making of such Borrowing Term Loan shall not violate any material applicable requirement of law and shall not be enjoined, temporarily, preliminarily or issuance permanently.
(f) The Loan Parties shall be in compliance in all material respects with each First Day Order and after giving effect thereto), as Second Day Order then in effect.
(g) There shall not have occurred a Material Adverse Effect since the case may be: Effective Date.
(ah) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the The representations and warranties of any Company the Loan Parties contained in Article VI or any Guarantor set forth other Loan Document, or which are contained in the Loan Papers are any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on unless otherwise qualified by materiality in which case such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material ) on and as of the Credit Date, both before and immediately after giving effect to the transactions contemplated in this Agreement, and time is making of the essence in respect Term Loan on such Credit Date and the application of each thereof. Subject to the prior approval of Required Lendersproceeds therefrom, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, as though made on such date; provided that to the extent permitted that such representations and warranties specifically refer to an earlier date, then such representations and warranties shall be true and correct in all material respects (unless otherwise qualified by Lawmateriality in which case such representations and warranties shall be true and correct in all respects) as of such earlier date.
(i) As of the applicable Credit Date, (i) no Default or Event of Default shall exist or would result from the making of such Term Loan and the application of proceeds therefrom and (ii) the Borrower shall be in pro forma compliance with the covenant set forth in Section 8.20.
(j) The Administrative Agent shall have received a certificate, dated as of applicable Credit Date and signed by a Responsible Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 5.02.
(k) The Borrower shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees and expenses then earned, due and payable under the Loan Documents (including, without limitation, the same fees, costs and expenses of counsel and the other advisors to the Administrative Agent and the Lenders). Each Borrowing shall not be deemed to be constitute a waiver representation and warranty by the Borrower on the date of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or Borrowing, issuance, unless Required Lenders specifically waive each such item amendment, extension or renewal as applicable, as to the matters specified in writingthis Section 5.02.
Appears in 1 contract
Sources: Term Loan Credit Agreement (RVL Pharmaceuticals PLC)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 2.3, SECTION 5.1, and SECTION 7.25.2, Facility B Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be), unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: ): (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), Competitive Borrowing as the case may be; (b) Administrative Agent shall have received the Competitive Bid fees as provided for in SECTION 4.3 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersPapers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (cd) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (fi) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility B Agreement is material to the transactions contemplated in this Facility B Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Determining Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuancefunding, unless Required Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated (unless waived in SECTION 7.1 writing by the Lenders in their sole and SECTION 7.2absolute discretion); provided, Lenders will not however, that there shall be obligated no duplication with respect to fund (as opposed to continue or convert) any Borrowing, the satisfaction of conditions precedent under Sections 3.1 and Administrative Agent will not be obligated to issue any LC, as 3.2 if the case may be, unless Closing Date and a Borrowing Date occur on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the All representations and warranties of any Company or any Guarantor set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are be true and correct in all respectsrespects as of the Borrowing Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date). Each Trapper Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Sizing Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated in this Agents and the Lenders.
(f) No Material Adverse Effect has occurred or is continuing since the Closing Date.
(g) Each Current Project shall be a Project subject to the Master Lease, and if any Current Project is a Commercial Project, then the commercial Host Customer met the Minimum Commercial Credit Standard as of the closing date of the applicable Lease Tranche under the Master Lease for such Current Project; provided, it shall not be a condition to a Borrowing that the commercial Host Customer meet the Minimum Commercial Credit Standard with respect to the Host Customer site being owner-occupied and not leased, so long as (i) such Host Customer is an Investment Grade Host Customer and (ii) the term of the lease entered into by such Host Customer with respect to such site is the same or longer than such Host Customer’s Customer Agreement.
(h) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document, (ii) each Customer Agreement, and time is (iii) the Closing Certificate, in each case with respect to a Current Project, duly executed and delivered by each party thereto and in form and substance satisfactory to the Lenders. Trapper Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(i) With respect to the final Borrowing, the Administrative Agent and the Lenders shall have received copies of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any BorrowingTrue-Up Reports delivered by Borrower to, and Administrative Agent may issue accepted by, Lessee under Section 6.7 of the Master Lease with respect to any LC, without all conditions being satisfied, but, to Current Project or Funded Project.
(j) To the extent permitted by Lawissued or delivered pursuant to Section 6.8 of the Master Lease, the same Collateral Agent shall not have received the Master Lease Letter of Credit, which shall be deemed in full force and effect.
(k) To the extent the Master Lease is amended, or waived to be a waiver permit, the acceptance of Customer Agreements with [***] terms as described in clause (D) of the requirement that each such condition precedent be satisfied as first proviso in Section 6.11(a), no Current Project for a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingResidential Project has a Customer Agreement with [***] terms.
Appears in 1 contract
Sources: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition Each Advance to be made hereunder (including the initial Class A Advance and the initial Class B Advance), if any, on each Borrowing Date shall be subject to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as fulfillment of the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: following conditions:
(a) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Maximum Advance Rate Test Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, (i) the aggregate outstanding principal balance of the Advances shall be less than or equal to the Maximum Available Amount at such time, (ii) the aggregate outstanding principal balance of the Class A Advances shall be less than or equal to the Class A Maximum Available Amount at such time and (iii) the aggregate outstanding principal balance of the Class B Advances shall be less than or equal to the Class B Maximum Available Amount at such time, in each case, as demonstrated in the calculations attached to the applicable Notice of Borrowing;
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Loan Papers are this Agreement shall be true and correct in all material respects (except for representations and warranties already qualified by materiality or Material Adverse Effect, which shall be true and correct) as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based 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), or have otherwise been changed by transactions contemplated or permitted by waived in the Loan Papers); (c) no Material Adverse Event shall have occurred; sole discretion of the Administrative Agent;
(d) no Default Unmatured Event of Default, Early Amortization Event or Potential Event of Default shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) all terms and conditions of the funding Receivable Purchase Agreement required to be satisfied in connection with the assignment of each Receivable being pledged under the Security Agreement on such Borrowings Borrowing Date (and issuance the Receivable and Related Documents related thereto), including the perfection of such LCthe Borrower’s interests therein, as shall have been satisfied in full, and all filings (including UCC filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the case may beAdministrative Agent, is permitted by Law; for the benefit of the Secured Parties, a first priority perfected security interest in all of the Borrower’s right, title and interest in the related Receivables all payments from related Obligors, the Related Documents and all rights of the Borrower under the Receivable Purchase Agreement, excluding any Collateral in which a security interest cannot be perfected under the UCC, shall have been made, taken or performed;
(f) upon the reasonable request Borrower shall have taken all steps necessary under all Applicable Law in order to cause to exist in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid, subsisting and enforceable first priority perfected security interest in the Borrower’s right, title and interest in the Collateral related to each Receivable being pledged hereunder on such Borrowing Date, including receipt by the Administrative Agent of evidence reasonably satisfactory to the Administrative Agent that all Liens (except for Permitted Liens) have been released on such Collateral;
(g) the Borrower shall deliver have delivered to (i) the Administrative Agent evidence substantiating any and the Backup Servicer (following a Backup Servicing Event) a fully executed copy of the matters Assignment and Schedule of Receivables and (ii) the Backup Servicer (following a Backup Servicing Event) the Related Documents, in each case, relating to the Loan Papers which are necessary to enable Borrower to qualify for Eligible Receivables in connection with such Borrowing. Each Notice of Borrowing and LC Agreement ; and
(h) with respect to the initial Advance to be made hereunder, the Borrower shall have delivered (i) evidence reasonably satisfactory to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true Collection Account has been established, (ii) the Collection Account Control Agreement, duly executed and correct delivered by the parties thereto, in all respects. Each condition precedent in this Agreement is material full force and effect; and (iii) legal opinions (addressed to the transactions contemplated in this Administrative Agent, the Lenders and their successors and assignees) of Orrick Herrington & Sutcliffe LLP, as counsel to the Borrower, relating to certain enforceability and UCC matters related to the Collection Account Control Agreement, in each case, in form and time is of the essence in respect of each thereof. Subject substance reasonably satisfactory to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingAgent.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.27.1, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent no LC Issuer will not be obligated to issue issue, extend the expiry date of, renew, or increase the amount of any LC, as the case may be, unless on the date of such Borrowing or issuance issuance, extension, renewal, or increase (and after giving effect thereto), as the case may be: :
(a) Administrative Agent (and LC Issuer, if applicable) shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) the applicable LC Issuer shall have received the LC fees provided for in SECTION 5.5(b) hereof; (c) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurredrespects; (d) no Default or Potential Default shall have occurred and be continuingcontinuing or shall arise as a result of the requested Borrowing or LC; and (e) the funding of such Borrowings and issuance issuance, extension, renewal, or increase of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent (or LC Issuers, as applicable) shall constitute the representation and warranty by Borrower to Administrative Agent that (or LC Issuers, as applicable) that, as of the Borrowing Date or the date of issuance of, extension of the expiry date of, or renewal or increase in the amount of the requested LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior written approval of Required LendersLenders (or as otherwise set forth in SECTIONS 2.2(c) or 2.3(b)), Lenders may fund any Borrowing, and Administrative Agent LC Issuers may issue issue, extend the expiry date of, renew, or increase any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 SECTIONS 7.1, 7.2, and SECTION 7.27.3, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: ): (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have timely received, as applicable, the LC fees provided for in SECTION 5.4; (c) all of the representations and warranties of any each Company or any Guarantor set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (cd) no change in the financial condition or business of any Company which could be a Material Adverse Event shall have occurredoccurred since the date of the Current Financials delivered by Borrower to Lenders pursuant to SECTION 7.2 of the Credit Agreement; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is are permitted by Law; and (fg) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Coorstek Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as fulfillment of the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: following conditions:
(a) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.03;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and each Collateral Quality Test shall be satisfied (or, if not satisfied, maintained or improved, in each case, as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing;
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Default Default, Event of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and Reinvestment Period shall not have terminated;
(f) upon after giving effect to such Advance, the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any Dollar Equivalent of the matters aggregate principal amount of all Advances denominated in an Available Currency other than Dollars shall not exceed the Loan Papers which are necessary Non-Dollar Sublimit;
(g) subject to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Section 2.02, the Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is have approved of the essence in respect Approval Request for each Collateral Loan to be acquired with the proceeds of each thereof. Subject such Advance and such approval has not expired or been rescinded; and
(h) after giving effect to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Lawsuch Advance, the same aggregate outstanding principal balance of all Advances shall not be deemed to be a waiver exceed the sum of:
(i) the Aggregate Net Collateral Balance, minus
(ii) the Minimum Equity Amount, plus
(iii) the Dollar Equivalent of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item aggregate amounts on deposit in writingthe Principal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Pennantpark Investment Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Committed Lender to make any Loans is subject to the prior satisfaction of the following conditions stated in SECTION 7.1 (unless waived pursuant to Section 9.14(a)); provided, however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, 3.2 if the Closing Date and Administrative Agent will not be obligated to issue any LC, as the case may be, unless a Borrowing Date occur on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the All representations and warranties of any Company or any Guarantor set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are be true and correct in all respects. Each condition precedent respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in this Agreement which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is material continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the transactions Administrative Agent and each Group Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Aggregate Advance Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in this Agreement, and time is favor of the essence Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of each thereof. Borrower’s Equity Interest in the Managing Member(s) of any Subject Fund.
(e) All amounts for which reasonably detailed invoices have been received at least one (1) Business Day prior to the prior approval of Required Lenders, Lenders may fund applicable Borrowing Date and that are required to be paid to or deposited with any BorrowingSecured Party hereunder or under any other Financing Document, and Administrative Agent may issue all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section Kronor Loan Agreement [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
3.1 and this Section 3.2, shall have been paid in full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the Agents and the Group Agents.
(f) After giving effect to such proposed Borrowing and any LCWatched Fund identified in the Borrowing Base Certificate, without all conditions being satisfiedthe Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, butand, to the extent permitted by LawBorrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(i) No Sweep Event has occurred and is continuing and (ii) solely for purposes of determining whether the same amount of the requested Borrowing would cause the Outstanding Principal (including the amounts of the requested Borrowing) to exceed the Available Borrowing Base, each Subject Fund in respect of which a Subject Fund Sweep Event has occurred and is continuing shall not be deemed to be a waiver have an Advance Rate of 0%, and the Borrowing Notice, Borrowing Base Certificate and Aggregate Advance Model delivered by the Borrower pursuant to Section 3.2(c) shall reflect such Advance Rate of 0%.
(i) [Reserved.]
(j) No Bankruptcy Event shall have occurred with respect to SolarCity.
(k) The conditions precedent set forth in Section 3.3 with respect to any Current Systems have been satisfied in all respects as of the requirement that each Borrowing Date.
(l) All Accounts shall be funded in the amounts then required in accordance with the terms of the CADA.
(m) Other than with respect to the initial Borrowing, the Borrower shall have entered into all Interest Rate Protection Agreements required to have been entered into on such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingBorrowing Date under Section 2.13.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make the Loan on the occasion of a Borrowing on or after the date of this Agreement shall be subject to the conditions stated in SECTION 7.1 condition precedent that the Original Effective Date and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, the Amendment and Administrative Agent will not be obligated to issue any LC, as the case may be, unless Restatement Effective Date shall have occurred and on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: Borrowing:
(a) Administrative Agent The following statements shall have timely received therefor a be true (and each of the giving of the Notice of Borrowing or and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a Notice representation and warranty by the Borrower that on the date of LC the Borrowing such statements are true):
(together with the applicable LC Agreement), as the case may be; (bi) all of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Section 4.01 and in each other Loan Papers Document are true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based expressly relate to an earlier date in which case such representations and warranties shall have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent material respects on each earlier date);
(ii) there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(iii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
(b) The Collateral Agent (for the benefit of the Secured Parties) shall have obtained a valid and perfected first priority (other than Permitted Liens) lien on and security interest in this Agreement is material the Collateral and the Borrower shall have executed or authorized the Collateral Agent to execute, as applicable, and delivered UCC financing statements, and any other financing statements or other registrations or filings under any personal property security legislation of any other jurisdiction as may be reasonably required by the Administrative Agent, to the transactions contemplated Administrative Agent.
(c) The Borrower shall have notified the Lender in this Agreement, and time is of writing as to the essence proposed Drawdown Date in respect of each thereof. Subject such Borrowing and shall have delivered to the Lender a duly executed Notice of Borrowing in respect of such Borrowing.
(d) On or prior approval to the date of Required Lenders, Lenders may fund any the proposed Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, there shall be credited to the extent permitted Collateral Account Collateral with a sufficient aggregate Prevailing Market Value to cause the Actual LTV Ratio (computed after giving effect to the proposed Borrowing) to be less than or equal to the Initial LTV.
(e) The Lender shall have received the Promissory Note made and duly executed by Lawthe Borrower payable to the Lender in the amount of the Loan.
(f) The Borrower shall have paid all applicable, documented and reasonable fees and expenses of the same Lender and the Custodian for which invoices have been presented at least one Business Day prior to the applicable Drawdown Date or such later date to which the Borrower and the Lender may agree (including the documented and reasonable fees, costs and expenses of legal counsel to the Lender and the Custodian); provided that the Borrower shall not be deemed required to pay an amount in aggregate in excess of U.S.$50,000 in respect of such fees and expenses.
(g) The Lender shall have received such other information, approvals, opinions or documents as the Lender may reasonably request.
(h) No Blocking Event shall be a waiver continuing or would result from the proposed Loan.
(i) The Lender shall have received the results of lien searches with respect to the requirement that each Borrower, such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingresults being satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and 5.1 (except SECTION 7.25.1(B)), Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing or Swing Line Borrowing, and Administrative Agent will not be obligated to issue any LC), as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: :
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), Competitive Borrowing as the case may be; AMENDED AND RESTATED 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
(b) Administrative Agent shall have received, as applicable, the fees provided for in SECTION 4.3 hereof or any fees then payable as provided for in SECTION 4.2, if applicable;
(c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; ;
(d) no Default or Potential Default shall have occurred and be continuing; ;
(e) the funding of such Borrowings and issuance of such LC, as the case may be, Borrowing is permitted by Law; and and
(f) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (C) and (D) above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Determining Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: 364 Day Revolving Credit and Term Loan Agreement (Mci Worldcom Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (d) and SECTION 7.2, Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Revolving Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent must have received and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance and such approval has not expired or been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.03;
(c) immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of LC Borrowing);
(together with the applicable LC Agreement), as the case may be; (bd) all each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); ;
(ce) no Material Adverse Default, Event shall have occurred; (d) no Default of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; (e) continuing at the funding time of the making of such Borrowings and issuance Advance or shall result upon the making of such LC, as the case may be, is permitted by Law; and Advance;
(f) upon the reasonable request of Administrative AgentReinvestment Period shall not have terminated; and
(g) after giving effect to such Advance, Borrower shall deliver to Administrative Agent evidence substantiating any the aggregate outstanding principal balance of the matters Advances shall not exceed the lesser of (x) the Maximum Facility Amount and (y) the sum of:
(i) the Aggregate Net Collateral Balance, minus
(ii) the Minimum Equity Amount, plus
(iii) the aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingPrincipal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition 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 conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated fulfillment of the following conditions; provided that with respect to fund (as opposed to continue or convert) any Revolving Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance Date shall occur prior to the end of the Revolving Period and (and after giving effect thereto)2) with respect to any Term Borrowing, as such Borrowing Date shall occur prior to the case may be: Term Commitment Termination Date:
(a) Administrative 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 ten (10);
(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 timely received therefor a Notice of Borrowing or a Notice with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of LC (together with such Advance on the applicable LC Agreement)Borrowing Date, as there is no Borrowing Base Deficiency;
(g) for any Borrowing Date occurring after the case may be; third Payment Date, immediately before and after the making of such Advance on such Borrowing Date, the Interest Coverage Test shall be satisfied;
(bh) all each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in this Agreement and the Loan Papers are other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); ;
(ci) no Material Adverse Default, Event shall have occurred; (d) no of Default or Potential Default 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
(el) the funding provisions of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent Section 10.02 have been or will be satisfied as a prerequisite for of the date of purchase in connection with any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingacquisition of additional Collateral Obligations with the proceeds of the applicable Advance.
Appears in 1 contract
Sources: Credit and Security Agreement (TCW Direct Lending VIII LLC)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.27.1, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the LC fronting fees provided for in SECTION 5.4(b) hereof; (c) all of the representations and warranties of any Company or any Guarantor Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Paperstrue and correct in all material respects as of such earlier date); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such 29 NBPLP CREDIT AGREEMENT Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the request LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition Each Advance to be made hereunder, if any, (including the initial Advance) on each Borrowing Date shall be subject to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as fulfillment of the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: following conditions:
(a) Administrative the Facility Agent shall have timely received therefor a Notice of Borrowing or with respect to such Advance (including a duly completed Borrowing Base Calculation Certification attached thereto and each of the schedule of loans required to be delivered pursuant to the Notice of LC (together Borrowing attached thereto) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) immediately after the making of such Advance on the applicable Borrowing Date, (i) no Class A Borrowing Base Deficiency or Class B Borrowing Base Deficiency shall exist (as demonstrated in the calculations attached to the applicable Notice of Borrowing) and (ii) the aggregate outstanding balance of all Advances shall not exceed the Facility Limit;
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Loan Papers are this Agreement shall be true and correct in all material respects (except for representations and warranties already qualified by materiality or Material Adverse Effect, which shall be true and correct) as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Unmatured Event of Default, Event of Default, Unmatured Servicer Event of Default, Unmatured Backup Servicer Event of Default or Potential Default Accelerated Amortization Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) the funding of such Borrowings and issuance of such LCtransactions contemplated by the Facility Documents would not require Cross River Bank (or other Approved Loan Originator) to comply with any risk retention or capital commitment obligation or Cross River Bank (or other Approved Loan Originator) to comply with any reporting, as the case may befiling, is permitted by Law; and or any other obligation or undertaking;
(f) upon the reasonable request Verification Agent shall have r each of Administrative the Loan Documents with respect to each Loan included in the calculation of the Class A Borrowing Base or Class B Borrowing Base in relation to such Advance and shall have issued and delivered to the Facility Agent and each Lender a Verification Agent Confirm with respect to such Loans (without any Exceptions noted thereon unless waived by the Facility Agent, ) all in form and substance acceptable to the Facility Agent;
(g) Borrower shall deliver have deposited to Administrative Agent evidence substantiating any the Reserve Account an amount of cash such that the matters Reserve Account Amount is not less than the Reserve Account Required Amount;
(h) the Termination Date shall not have occurred;
(i) the Servicer shall have delivered an updated Loan Schedule including the Loans to be included in the Loan Papers which are necessary Collateral Loans in connection with each Collection Period;
(j) evidence that all fees to enable be received by the Facility Agent and each Lender on or prior to the Borrowing Date pursuant to the Placement Agent Fee Letter and the Lender Fee Letter have been received; and
(k) the Borrower to qualify for such Borrowing. Each Notice shall be in compliance with Section 5.04 of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated and with all requirements of any Hedging Agreement then in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingeffect.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Upstart Holdings, Inc.)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2Section 7.1, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the LC fronting fees provided for in Section 5.4(b) hereof; (c) all of the representations and warranties of any Company or any Guarantor Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Paperstrue and correct in all material respects as of such earlier date); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the request LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingwriting with respect to such subsequent funding or issuance.
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Bank to make a Loan to Borrower (including, without limitation, the initial Loan) shall be subject to the further conditions stated in SECTION 7.1 and SECTION 7.2precedent that (a) on or prior to the date of such Loan, Lenders will not be obligated to fund (as opposed to continue or convert) any the Agent shall have received from Borrower a Notice of Borrowing, and Administrative Agent will not be obligated to issue any LCNotice of Swing Loan or a Competitive Bid Confirmation, as the case may be, unless in accordance with the terms of this Agreement and (b) on the date of such Borrowing or issuance Loan, the following statements shall be true and correct (and after each of the giving effect thereto)of any applicable Notice of Borrowing, Notice of Swing Loan or Competitive Bid Confirmation, as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with , and the applicable LC Agreement), as the case may be; (b) all acceptance by Borrower of the proceeds of such Loan, shall constitute a representation and warranty by Borrower that on the date of such Loan such statements are true and correct):
(i) The representations and warranties of any Company or any Guarantor set forth Borrower contained in the Loan Papers Section 7.01 of this Agreement are true and correct in all material respects on and as of the date of such Loan (except to the extent that for (i1) the those representations and or warranties speak or parts thereof that, by their terms, expressly relate solely to a specific date or (ii) the facts on date, in which case such representations and warranties are based have shall be true and correct in all material respects as of such specific date; and (2) if such Loan is not a part of the initial Borrowing hereunder and if at the time of such Loan (I) all senior unsecured long-term debt of the Borrower is rated BBB or higher by S&P or is rated Baa2 or higher by Moody's, (II) the Borrower is not Unrated and (III) either (x) all senior unsecured long-term debt of the Borrower is rated BBB+ or higher by S&P and is rated Baal or higher by Moody's or (y) the Borrower is not on credit wat▇▇ ▇▇▇▇ negative implications with S&P or Moody's (and no similar comment has been changed made by transactions contemplated or permitted 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 Papers); 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;
(cii) no Material Adverse Event Borrower shall be in compliance with and shall have occurredperformed all agreements and covenants made by it under this Agreement; and
(diii) no No Default or Potential Event of Default shall have occurred and be continuing; (e) the funding of continuing or would result from such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating Loan or any of the matters in the other Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each made on such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingdate.
Appears in 1 contract
Sources: Revolving Credit Agreement (Reliant Energy Resources Corp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2, Section 7.1:
(a) Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received the LC fronting fees provided for in Section 5.4(b) hereof; (c) all of the representations and warranties of any Company or any Guarantor Loan Party set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties which expressly refer to an earlier date, which are based have been changed by transactions contemplated or permitted by the Loan Paperstrue and correct in all material respects as of such earlier date); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such Borrowings Borrowing and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that and Lenders that, as of the Borrowing Date or the date of issuance of the requested LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingwriting with respect to such subsequent funding or issuance; and.
(b) So long as any Loan Party is a "subsidiary of a registered holding company" and not a "holding company", a "public-utility company", an "investment company", or a "fiscal or financing agency" of a "holding company", "public utility company" or an "investment company" as such terms are used in or defined by PUHCA, the proceeds of the Borrowing will be used in accordance with Section 8.12(a)(ii) below;
(c) Section 8.12, Government Regulations, of the Credit Agreement is hereby amended by replacing such Section in its entirety with the following:
Appears in 1 contract
Sources: Revolving Credit Agreement (Northern Border Partners Lp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance and any Swingline Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (c) and SECTION 7.2, Lenders will (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Revolving Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04:
(a) the Administrative Agent (and, with respect to any Swingline Advance, the Swingline Lender) shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied (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);
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Parent and the Collateral Manager contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; 750499896 22723957
(d) no Default Default, Event of Default, Potential Collateral Manager Termination Event or Potential Default Collateral Manager Termination Event shall have occurred and be continuingcontinuing at the time of the making of such Advance or shall result upon the making of such Advance; and
(e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same Reinvestment Period shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writinghave terminated.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (c) and SECTION 7.2, Lenders will (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Delayed Drawdown Collateral Loans or Revolving Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Unfunded Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04:
(a) the Lenders and the Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test and Collateral Quality Test shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing and certified by a Responsible Officer of the Borrower (or the Collateral Manager on behalf of the Borrower));
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Default or Potential Event of Default shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) the funding Borrower and the Collateral Manager shall have received written notice from the Administrative Agent, evidencing the approval of the Administrative Agent in its sole discretion, in accordance with clause (A) of the definition of “Eligible Loan”, of the loans to be added to the Collateral (if any loans are to be added to the Collateral in connection with such Borrowings and issuance of such LC, as the case may be, is permitted by LawAdvance); and and
(f) upon after the reasonable request making of Administrative Agentsuch Advances and the deposit of any portion thereof into the Unfunded Reserve Account, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement amount on deposit thereon is material at least equal to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Unfunded Reserve Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingAmount.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 7.1 precedent that the Effective Date shall have occurred and SECTION 7.2, Lenders will not on the date of each Borrowing:
(a) the following statements shall be obligated to fund true (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as each of the case may be, unless giving of the Notice of Borrowing and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 are correct on and as of the date of such Borrowing, before and after giving effect to a specific date or such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date;
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the facts on application of the proceeds therefrom, that constitutes a Default;
(iii) all of the proceeds of such Borrowing shall be used solely in accordance with Section 2.10;
(iv) with respect to any Borrowing the proceeds of which will be used to make a Permitted Payment, a Permitted Payment in the amount of such representations and warranties are based Borrowing is due within 1 Business Day of the date of such Borrowing;
(v) the Borrower has not made any representation or warranty herein or in connection with this Agreement that shall prove to have been changed incorrect in any material respect when made; and
(vi) the Borrower has not failed to perform or observe any term, covenant or agreement contained in this Agreement or any other Loan Document on its part to be performed or observed, other than any failure that shall have been remedied;
(b) the Lender shall have received a duly executed “Statement of Purpose for an Extension of Credit Secured by transactions contemplated or permitted Margin Stock by the Loan Papers)a Person Subject to Registration Under Regulation U” on Federal Reserve Form G-3 and a “Statement of Purpose for an Extension of Credit Secured by Margin Stock” on Federal Reserve Form U-1 with respect to such Borrowing, each completed in form and substance satisfactory to Lender; and
(c) no Material Adverse Event the Termination Date shall not have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Credit Agreement (Directv Group Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment (or waiver by the Required Lenders) of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (c) and SECTION 7.2, Lenders will (d) (other than a Default or Event of Default described in Section 6.01(g)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Delayed Drawdown Collateral Loans or Revolving Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Unfunded Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.05:
(a) the Lenders and the Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, the Coverage Test and the Collateral Quality Test shall be satisfied (or, in the case of the Collateral Quality Test, if the Collateral Quality Test was not satisfied immediately before the making of such Advance, the Collateral Quality Test is maintained or improved) (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing and certified by a Responsible Officer of the Borrower (or the Servicer on behalf of the Borrower));
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Default or Potential Event of Default shall have occurred and be continuingcontinuing at the time of the making of such Advance or shall result upon the making of such Advance; and
(e) the funding Borrower and the Servicer shall have received written notice from the Administrative Agent (with a copy to the Collateral Administrator), evidencing the approval of such Borrowings and issuance the Administrative Agent in its sole discretion, in accordance with clause (A) of such LCthe definition of “Eligible Loan”, as of the case may be, is permitted by Lawrelevant Collateral Loans to be added to the Collateral; and and
(f) upon after the reasonable request making of Administrative Agentsuch Advances and the deposit of any portion thereof into the Unfunded Reserve Account, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement amount on deposit therein is material at least equal to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Unfunded Reserve Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingAmount.
Appears in 1 contract
Sources: Credit and Security Agreement (Bain Capital Specialty Finance, Inc.)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 7.1 precedent that the Effective Date shall have occurred and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance the following statements shall be true (and after each of the giving effect thereto), as of the case may be: applicable Borrowing Notice and the acceptance by the Borrowers of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrowers that on the date of such Borrowing such statements are true):
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak contained in Section 4.01, the Security Agreement and the Pledge Agreement are correct on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date;
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a specific date or Default;
(c) after giving effect to such Borrowing, the aggregate amount of the requested Borrowing will not exceed an amount equal to the lesser of (i) when added to all outstanding Advances, the sum of (A) $30,000,000, (B) eighty-five (85%) percent of the net amount of Eligible Receivables and (C) forty (40%) percent of Eligible Inventory, less, in each case, any Availability Reserves (each of which is measured as of the end of the fourth Business Day immediately preceeding such Borrowing), and (ii) when added to the facts on outstanding Advances made during the calendar month during which such representations and warranties are based have been changed by transactions contemplated or permitted by Borrowing is made, will not exceed 110% of the Loan Papers); (c) no Material Adverse Event shall have occurred; aggregate projected cash requirements of MEMC for such month as set forth on the applicable Monthly Projected Cash Flow Statement;
(d) no Default or Potential Default shall have occurred all expenditures to be paid from proceeds of the applicable Borrowing are reasonable and be continuingnecessary for the conduct of the business of the Borrower; and
(e) in the funding reasonable judgment of the Borrower, the amount of such Borrowings and issuance Borrowing is reasonably necessary for the Borrower to meet its liquidity requirements for the next ten (10) Business Days immediately following the date of such LC, as Borrowing (taking into account the case may be, is permitted by Law; and (f) upon the reasonable request liquidity needs of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingits Subsidiaries).
Appears in 1 contract
Sources: Revolving Credit Agreement (Memc Electronic Materials Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance and any Swingline Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (c) and SECTION 7.2, Lenders will (d) (other than a Default or Event of Default described in Section 6.01(f)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower or to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Revolving Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04:
(a) the Administrative Agent (and, with respect to any Swingline Advance, the Swingline Lender) shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied (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);
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Parent and the Collateral Manager contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Default Default, Event of Default, Potential Collateral Manager Termination Event or Potential Default Collateral Manager Termination Event shall have occurred and be continuingcontinuing at the time of the making of such Advance or shall result upon the making of such Advance; and
(e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same Reinvestment Period shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writinghave terminated.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Main Street Capital CORP)
Conditions Precedent to Each Borrowing. In addition 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 conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated fulfillment of the following conditions; provided that with respect to fund (as opposed to continue or convert) any Revolving Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance Date shall occur prior to the end of the Revolving Period and (and after giving effect thereto)2) with respect to any Term Borrowing, as such Borrowing Date shall occur prior to the case may be: Term Commitment Termination Date:
(a) Administrative 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 ten (10);
(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 timely received therefor a Notice of Borrowing or a Notice with respect to such Advance delivered in accordance with Section 2.02; 113
(f) immediately after the making of LC (together with such Advance on the applicable LC Agreement)Borrowing Date, as there is no Borrowing Base Deficiency;
(g) for any Borrowing Date occurring after the case may be; third Payment Date, immediately before and after the making of such Advance on such Borrowing Date, the Interest Coverage Test shall be satisfied;
(bh) all each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in this Agreement and the Loan Papers are other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); ;
(ci) no Material Adverse Default, Event shall have occurred; (d) no of Default or Potential Default 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
(el) the funding provisions of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent Section 10.02 have been or will be satisfied as a prerequisite for of the date of purchase in connection with any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingacquisition of additional Collateral Obligations with the proceeds of the applicable Advance.
Appears in 1 contract
Sources: Credit and Security Agreement (TCW Direct Lending VIII LLC)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION Section 7.1 and SECTION 7.2Section 7.2 (as applicable), Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent no Issuing Lender will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: :
(a) Administrative Agent or Issuing Lender (as applicable) shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in Section 5.4 hereof; (c) all of the representations and warranties of any Company or (or, in addition, with respect to any Guarantor Borrowing by any Unrestricted Borrower, such Unrestricted Borrower) set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent and Issuing Lenders (as applicable) shall constitute the representation and warranty by Borrower Borrowers to Administrative Funding Agent that and Issuing Lenders that, as of the Borrowing Date or the date of issuance of the LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent Issuing Lenders may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 5.1 and SECTION 7.25.2, Facility A Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing), and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or Borrowing, a Notice of LC (together with the applicable LC Agreement), or Notice of Competitive Borrowing as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in SECTION 4.3 and 4.4 hereof or the Competitive Bid fees as provided for in SECTION 4.5 hereof, if applicable; (c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersPapers and, if applicable, supplemental Schedules have been delivered with respect thereto; provided that any changes to SCHEDULES 6.13, 7.12, 7.13 or 7.20 must also be approved by Determining Lenders); (cd) no change in the financial condition of any Consolidated Company which is a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Permitted Acquisition contemplated by ITEMS (b) or (c) of the definition of Permitted Acquisition, Administrative Agent shall have timely received certified copies of any and all purchase agreements (together with, upon the request of Administrative Agent, all schedules and exhibits thereto) executed by any Consolidated Company in connection with such Permitted Acquisition, accompanied by all financial information, projections, and certifications required by the Loan Papers in connection with a Permitted Acquisition, including, without limitation, all items required in SECTION 5.2; and (fi) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (c), (d), (e), and (f) above are true and correct in all respects. Each condition precedent in this Facility A Agreement is material to the transactions contemplated in this Facility A Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Determining Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Determining Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as fulfillment of the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: following conditions:
(a) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, the Availability Test, the Interest Coverage Ratio Test, the Asset Coverage Ratio Test and each Collateral Quality Test shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of Borrowing except for the Asset Coverage Ratio Test, which Borrower shall certify as of the last such date that such Asset Coverage Ratio was calculated);
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower and the Servicer contained in the Loan Papers are this Agreement shall be true and correct in all material respects (except for representations and warranties already qualified by materiality or Material Adverse Effect, which shall be true and correct) as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Default or Potential Event of Default shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) with respect to each Loan being acquired with the funding proceeds of such Borrowings Advance, the Custodian and issuance the Administrative Agent shall have received a completed Custodial Delivery Certificate together with the Loan File, the contents of which shall be identified in the related Collateral Loan File Checklist, three (3) Business Days prior to such LC, as the case may be, is permitted by LawBorrowing Date; and and
(f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute have received from the representation and warranty by Borrower to Administrative Agent Custodian a Custodial File Document Receipt Certificate that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreementdoes not show any Exceptions, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and except for such Exceptions as Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item approve in writingits sole discretion.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Newtek Business Services Corp.)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make the Loan on the occasion of a Borrowing after the Original Effective Date shall be subject to the conditions stated in SECTION 7.1 precedent that the Original Effective Date, the First Amendment and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, Restatement Effective Date and Administrative Agent will not be obligated to issue any LC, as the case may be, unless Second Amendment and Restatement Effective Date shall have occurred and on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: Borrowing:
(a) Administrative Agent The following statements shall have timely received therefor a be true (and each of the giving of the Notice of Borrowing or and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a Notice representation and warranty by the Borrower that on the date of LC the Borrowing such statements are true):
(together with the applicable LC Agreement), as the case may be; (bi) all of the representations and warranties of any Company or any Guarantor set forth contained in the Section 4.01 and in each other Loan Papers Document are true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based expressly relate to an earlier date in which case such representations and warranties shall have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent material respects on each earlier date);
(ii) other than the Ontario Litigation, there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(iii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
(b) The Collateral Agent (for the benefit of the Secured Parties) shall have obtained a valid and perfected first priority (other than Permitted Liens) lien on and security interest in this Agreement is material the Collateral and the Borrower shall have executed or authorized the Collateral Agent to execute, as applicable, and delivered UCC financing statements, and any other financing statements or other registrations or filings under any personal property security legislation of any other jurisdiction as may be reasonably required by the Administrative Agent, to the transactions contemplated Administrative Agent.
(c) The Borrower shall have notified the Lender in this Agreement, writing as to the proposed Drawdown Date and time is shall have delivered to the Lender a duly executed Notice of Borrowing.
(d) On or prior to the essence Drawdown Date in respect of each thereof. Subject Loan D, the Collateral Account shall contain Collateral with a sufficient aggregate Prevailing Market Value to cause the Actual LTV Ratio (i) with respect to the Loan outstanding prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed borrowing of Loan D to be less than or equal to 60% and (ii) after disbursement of Loan D to be less than or equal to 58.85% (which comprises a waiver weighted average of 60% (in respect of the requirement that each Loan of $50,000,000 prior to drawing of Loan D) and of 55% (in respect of Loan D in an amount of $15,000,000)).
(e) The Lender shall have received the Promissory Note made and duly executed by the Borrower payable to the Lender in the amount of the Loan.
(f) On or prior to the Drawdown Date in respect of Loan D, a sufficient amount of Bitcoin (BTC) at least equal to US$20,000,000 shall be held in the Unsecured Account on such condition precedent Drawdown Date.
(g) The Borrower shall have paid all applicable and documented fees and expenses of the Lender and the Custodian for which invoices have been presented at least two Business Days prior to the applicable Drawdown Date or such later date to which the Borrower and the Lender may agree (including the fees, costs and expenses of legal counsel).
(h) The Lender shall have received such other information, approvals, opinions or documents as the Lender may reasonably request.
(i) No Blocking Event shall be satisfied as a prerequisite for any subsequent funding continuing or issuancewould result from the proposed Loan.
(j) The Lender shall have received the results of lien searches with respect to the Borrower, unless Required Lenders specifically waive each such item in writingresults being satisfactory to the Lender.
Appears in 1 contract
Sources: Credit Agreement (Hut 8 Corp.)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent no LC Issuer will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent (and LC Issuer, if applicable) shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent and the applicable LC Issuer shall have received, as applicable, the LC fees provided for in SECTION 5.5 hereof; (c) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions expressly contemplated or permitted by the Loan PapersDocuments); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent (or LC Issuers, as applicable) shall constitute the representation and warranty by Borrower Borrowers to Administrative Agent that (or LC Issuers, as applicable) that, as of the Borrowing Date or the date of issuance of the requested LC, as the case may be, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior written approval of Required LendersLenders (or as otherwise set forth in SECTIONS 2.2(c) or 2.3(b)), Lenders may fund any Borrowing, and Administrative Agent LC Issuers may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Affiliated Computer Services Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lenders to make available their Ratable Portion of each Tranche of each Borrowing is further subject to the conditions stated in SECTION 7.1 satisfaction of the following conditions:
(a) receipt by the Agent of a Notice of Borrowing as required by Section 2.02 and SECTION 7.2such other documents, Lenders opinions and instruments relating to the transactions contemplated hereby as any Lender or the Agent may reasonably request;
(b) immediately after the making of such Borrowing, the aggregate outstanding principal amount of the Advances will not be obligated to fund exceed the Commitments;
(as opposed to continue or convertc) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (immediately before and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which making of such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) Borrowing, no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; ;
(d) the representations and warranties of the Credit Parties contained in this Agreement shall be true on and as of the date of the making of such Borrowing, unless such representation or warranty shall expressly relate to a different date;
(e) the funding of such Borrowings and issuance of such LC, except as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is there has not been any material change of the essence circumstances in respect of each thereof. Subject any of the Credit Parties or its shareholders;
(f) any inspection reports of the Vessels requested by the Agent as permitted hereunder shall be satisfactory to the prior approval Agent and the Agent shall be satisfied that upon a review of Required the class records by the Agent or a surveyor appointed by the Agent that the Mortgaged Vessels are being properly maintained within the requirements of the relevant Classification Society;
(g) each of the Credit Parties shall have complied with all laws, rules, regulations, contracts or other requirements which may be applicable to it, the absence of which would have a Material Adverse Effect on (1) any of the Borrowers or the Guarantors, (2) the Loan Documents or (3) the Collateral; and
(h) the Borrowers shall have paid, or caused to be paid, all costs (including legal fees), incurred by the Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by LawAgent, the same Security Trustee and the Swap Provider in connection with the preparation, execution and performance of this Agreement and the other Loan Documents. Unless waived by the Agent or the Lenders, the making of such Borrowing hereunder shall not be deemed to be a waiver representation and warranty by the Credit Parties to the Lenders on the date of such borrowing as to the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuancefacts specified in clauses (b), unless Required Lenders specifically waive each such item in writing(c) and (d) of this Section 3.03.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition Each Advance to be made hereunder (including the initial Advance), if any, on each Borrowing Date shall be subject to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as fulfillment of the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: following conditions:
(a) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC with respect to such Advance (together including the Maximum Advance Rate Test Calculation Statement attached thereto, all duly completed) delivered in accordance with the applicable LC Agreement), as the case may be; Section 2.02;
(b) all immediately after the making of such Advance on the applicable Borrowing Date, the aggregate outstanding principal balance of the Advances, shall be less than or equal to the Maximum Available Amount, at such time;
(c) each of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Loan Papers are this Agreement shall be true and correct in all material respects (except for representations and warranties already qualified by materiality or Material Adverse Effect, which shall be true and correct) as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); (c) no Material Adverse Event shall have occurred; ;
(d) no Unmatured Event of Default or Potential Event of Default or Accelerated Amortization Event shall have occurred and be continuing; continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(e) the funding of such Borrowings Borrower shall have delivered, or caused to have been delivered, in accordance with the time and issuance of such LCmanner specified in the Backup Servicing Agreement, as to the case may beBackup Servicer and the Administrative Agent, is permitted by Law; the Receivable Schedule and each document or item (whether or not electronic) comprising a Related Document with respect to the Receivables being pledged hereunder;
(f) upon all terms and conditions of the reasonable request applicable Receivable Purchase Agreement required to be satisfied in connection with the assignment of each Receivable being pledged hereunder on such Borrowing Date (and the Receivable and Related Documents related thereto), including the perfection of the Borrower’s interests therein, shall have been satisfied in full, and all filings (including UCC and PPSA filings) required to be made by any Person and all actions required to be taken or performed by any Person in any jurisdiction to give the Administrative Agent, for the benefit of the Secured Parties, a first priority perfected security interest in all of the Borrower’s right, title and interest in the related Receivables all payments from related Obligors, the Related Documents and all rights of the Borrower under the applicable Receivable Purchase Agreement, excluding any Collateral in which a security interest cannot be perfected under the UCC or the PPSA, as applicable, shall have been made, taken or performed;
(g) the Borrower shall deliver have taken all steps necessary under all Applicable Law in order to cause to exist in favor of the Administrative Agent, for the benefit of the Secured Parties, a valid, subsisting and enforceable first priority perfected security interest in the Borrower’s right, title and interest in the Collateral related to each Receivable being pledged hereunder on such Borrowing Date, including receipt by the Administrative Agent of evidence substantiating any reasonably satisfactory to the Administrative Agent that all Liens (except for Permitted Liens) have been released on such Collateral;
(h) the Borrower shall have delivered to the Administrative Agent a fully executed copy of the matters Purchase Confirmation relating to the Collateral Receivables in the Loan Papers which are necessary to enable Borrower to qualify for connection with such Borrowing. Each Notice of Borrowing and LC Agreement delivered to ; and
(i) the Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent have received satisfactory evidence that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is Seller has received such amounts of the essence purchase price in excess of the requested Advance in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed Receivables to be a waiver of acquired by the requirement that each Borrower on such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingBorrowing Date.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Sezzle Inc.)
Conditions Precedent to Each Borrowing. In addition The agreement of Triple-A to make any Triple-A Loan hereunder (including, without limitation, the initial Triple-A Loan) shall be subject to satisfaction of each of the following conditions precedent:
(a) Each of the Administrative Agent, the Collateral Agent and Triple-A shall have received:
(i) a Settlement Report dated as of the most recent Settlement Date;
(ii) a timely Notice of Borrowing, appropriately filled-out by the Borrower;
(iii) a Servicer's Daily Report, appropriately filled-out by the Servicer as of the Borrowing Date (after giving effect to such Borrowing and to the conditions stated application of the proceeds therefrom); and
(iv) such other approvals or documents as the Administrative Agent may reasonably request in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund connection with the contemplated Borrowing;
(as opposed to continue or convertb) any on the Borrowing Date of such Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (before and after giving effect thereto)to such Borrowing, as and to the case may be: application of the proceeds from such Borrowing, the following statements shall be true (a) Administrative Agent shall have timely received therefor a and each of the giving of the applicable Notice of Borrowing or a Notice of LC (together with and the applicable LC Agreement), as acceptance by the case may be; (b) all Borrower of the representations proceeds of such Borrowing shall constitute a representation and warranties warranty by the Borrower that on the Borrowing Date of any Company or any Guarantor set forth in the Loan Papers are true such Borrowing, before and correct in all material respects (except after giving effect thereto and to the extent that application of the proceeds therefrom, such statements are true):
(i) the representations and warranties speak to a specific date or (ii) contained in Article IV and all representations and warranties of the facts on which Seller in the Purchase and Contribution Agreement are true and accurate as of such Borrowing Date in all material respects with the same force and effect as though such representations and warranties are based had been made as of such date;
(ii) no event has occurred and is continuing, or would result from such Borrowing, which constitutes an Event of Default, Unmatured Event of Default, Servicer Default or Unmatured Servicer Default, and there is no Termination Date currently in effect;
(iii) there exists no Borrowing Base Shortfall; and
(iv) (A) the proceeds of such Triple-A Loan shall be used (1) to acquire Advances or (2) to otherwise fund costs and expenses to be paid under the terms of the Facility Documents in connection with the transactions contemplated by the Purchase and Contribution Agreement, and (B) all conditions to such funding or acquisition under the Purchase and Contribution Agreement on such date have been changed by transactions contemplated or permitted by the Loan Papers); satisfied;
(c) no No event or circumstance having a Material Adverse Event Effect shall have occurred; and
(d) no Default The aggregate commitments under the Liquidity Agreement shall equal or Potential Default shall have occurred and be continuing; exceed the outstanding principal balance of all Triple-A Loans (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material after giving effect to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing).
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in SECTION 5.3 and 5.4 hereof; (c) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (cd) no change in the financial condition or business of any Company or any Guarantor which could be a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Distribution to the extent permitted by SECTION 9.21, Administrative Agent shall have received all such certifications, financial information, and projections as Administrative Agent may reasonably request; and (fh) all matters related to such Borrowing must be satisfactory to Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Dobson Communications Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing (including on the Effective Date) and of the Issuing Bank to issue a Letter of Credit shall be subject to the further conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless precedent that on the date of such Borrowing or issuance Letter of Credit issuance, the following statements shall be true (and after each of the giving effect thereto)of the applicable Notice of Borrowing or Request for Issuance and the acceptance by the Borrower of the proceeds of such Borrowing or the issuance of the Letter of Credit on behalf of the Borrower shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or of such Letter of Credit issuance, as the case may be: such statements are true):
(a) the Administrative Agent shall have timely received therefor a Notice of Borrowing with respect to such Borrowing as required by Section 2.02(a) or the Issuing Bank shall have received a Notice Request for Issuance with respect to such Letter of LC (together with the applicable LC AgreementCredit issuance as required by Section 2.09(b), as the case may be; ;
(b) immediately after such Borrowing or Letter of Credit issuance, (i) the aggregate outstanding principal amount of all Term Loan Borrowings will not exceed the aggregate amount of the representations Term Loan Commitment and warranties (ii) the aggregate outstanding principal amount of any Company or any Guarantor set forth in all Revolving Advances and Letter of Credit Obligations will not exceed the Loan Papers are true and correct in aggregate amount of all material respects Revolving Facility Commitments;
(except to the extent that (ic) the representations and warranties speak contained in this Agreement, the Guaranty Agreement, the Security Agreement, the Pledge Agreement and each Mortgage are correct on and as of the date of such Borrowing or Letter of Credit issuance, before and after giving effect to a specific date such Borrowing or (ii) Letter of Credit issuance, and to the facts application of the proceeds therefrom, as though made on which and as of such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; date;
(d) no Default or Potential Default event shall have occurred and be continuing; , or would result from such Borrowing or Letter of Credit issuance, or from the application of the proceeds therefrom, which constitutes a Default;
(e) if such Borrowing or Letter of Credit issuance is to be secured, directly or indirectly, by any “margin stock” (within the funding meaning of such Borrowings Regulation U), the Administrative Agent shall have received (i) a duly executed Federal Reserve Form FR U-1 for each Lender that is a bank, for the Issuing Bank and issuance (ii) a duly executed Federal Reserve Form FR G-3 for each Lender that is not a bank, in each case signed and accepted by a duly authorized representative of such LC, as the case may be, is permitted by Lawapplicable Lender or the Issuing Bank; and and
(f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of or the matters Issuing Bank in the Loan Papers which are necessary to enable Borrower to qualify for case of a Letter of Credit issuance, shall have received such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute other approvals, opinions or documents as any Lender through the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 7.1 precedent that the Effective Date shall have occurred and SECTION 7.2, Lenders will not on the date of such Borrowing:
(a) The following statements shall be obligated to fund true (as opposed to continue or convert) and each of the giving of the applicable Notice of Borrowing and the acceptance by any Borrowing, Borrower of the proceeds of such Borrowing shall constitute a representation and Administrative Agent will not be obligated to issue any LC, as the case may be, unless warranty by such Borrower that on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 (except the representation set forth in the last sentence of subsection (e) thereof) and, in the case of any Borrowing made to a specific date or Designated Subsidiary, in the Designation Agreement for such Designated Subsidiary, are correct on and as of such date, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date,
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the facts on which such representations application of the proceeds therefrom, that constitutes a Default,
(iii) all governmental and warranties are based third party consents and approvals necessary in connection with the transactions contemplated hereby shall have been changed obtained (without the imposition of any conditions that are not acceptable to the Lenders) and shall remain in effect, all applicable waiting periods in connection with the Acquisition shall have expired without any action being taken by any competent authority, and no law or regulation shall be applicable in the reasonable judgment of the Lenders, in each case that restrains, prevents or imposes materially adverse conditions upon the transactions contemplated hereby, and
(iv) all conditions precedent to the consummation of the Acquisition (other than the payment of cash consideration from, among other sources, the proceeds of the initial Borrowing hereunder) shall have been satisfied substantially in accordance with the terms of the Stock and Asset Purchase Agreement dated as of October 1, 2004 between UCB SA and the Company, as amended through February 8, 2005, without any waiver or permitted amendment not consented to by the Loan Papers); Required Lenders of any material term, provision or condition set forth therein, and in compliance with all applicable laws.
(b) The Company's Public Debt Rating shall be not lower than BBB- from S&P and not lower than Baa3 from Moody's.
(c) no Material Adverse Event shall The Agen▇ ▇▇▇▇▇ have occurredreceived on or before the date of such Borrowing, in form and substance satisfactory to the Agent and in sufficient copies for each Lender, copies of the audited financial statements of the Surface Specialties business of UCB SA as at December 31, 2003 prepared in accordance with generally accepted accounting principles in Belgium; and
(d) no Default or Potential Default The Agent shall have occurred and be continuing; (e) received such other approvals, opinions or documents as any Lender through the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingreasonably request.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender Group (or any member thereof) to make a Loan on the conditions stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated occasion of each Borrowing (including the initial Borrowing) or of the Agent to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated cause the Issuing Bank to issue any LC, as requested L/C shall be subject to the case may be, unless further conditions precedent that on the date of such Borrowing Borrowing, or issuance (Letter of Credit Request, the following statements shall be true and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreementnotice required by SECTION 2.1(b), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event notice shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver certification by the Borrower that:
(i) The representations and warranties contained in Section 5.1 are correct on and as of the requirement that each date of such Borrowing, or Letter of Credit Request, as though made on and as of such date;
(ii) No event has occurred and is continuing, or would result from such Borrowing, or Letter of Credit Request, which constitutes an Event of Default or Potential Event of Default;
(iii) Nothing shall have occurred and the Agent shall not have become aware of any fact or condition precedent not previously known, which the Agent shall determine has, or could reasonably be satisfied expected to have, a material adverse effect on the rights or remedies of the Lender Group, or on the ability of the Borrower to perform its obligations to the Lender Group or which has, or could reasonably be expected to have, a materially adverse effect on the performance, business, property, assets, condition (financial or otherwise) or prospects of the Borrower and its Subsidiaries taken as a prerequisite whole; and
(iv) The security interests and liens in favor of the Lender Group are valid, enforceable, and prior to all others' rights and interests, except those the Agent consents to in writing; and
(v) All Loan Documents are in full force and effect; and (b) the Agent shall have received such other approvals, opinions or documents as the Agent may reasonably request.
11. Subsection 6.2(a) of the Agreement is hereby amended to read in its entirety as follows:
(a) CONSOLIDATED NET WORTH. At any time, permit Consolidated Net Worth to be less than $35,000,000; which such minimum amount of Consolidated Net Worth shall be increased (i) at the end of each fiscal quarter of the Borrower, commencing with Borrower's fiscal quarter ending June 30, 1998, by an amount equal to 75% of the consolidated net income of Borrower for such fiscal quarter, determined in accordance with GAAP, PROVIDED, HOWEVER, that if Borrower's net income for any subsequent funding or fiscal quarter, determined in accordance with GAAP, shall be less than zero, then no adjustment to such minimum amount of Consolidate Net Worth shall be made; and (ii) at such time Borrower shall issue equity securities, by an amount equal to 100% of the issuance proceeds (net of ordinary and customary underwriters' discounts and commissions, and costs, fees, and expenses incurred in connection with such issuance, unless Required Lenders specifically waive each such item in writing).
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make an Advance on the occasion of each Borrowing (including the initial Borrowing) shall be subject to the conditions stated in SECTION 7.1 and SECTION 7.2precedent that, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: Advance:
(a) Administrative Agent the following statements shall have timely received therefor a be true and correct (and the giving of the applicable Notice of Borrowing or a Notice of LC (together with and the applicable LC Agreement), as acceptance by the case may be; (b) all Borrower of the representations proceeds of such Borrowing shall constitute a representation and warranties warranty by the Parent that, on the date of any Company or any Guarantor set forth in the Loan Papers such Borrowing, such statements are true and correct in all material respects (except to the extent that correct):
(i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters contained in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above Section 4.01 are true and correct in all respects. Each condition precedent in this Agreement is material on and as of the date of such Borrowing, before and after giving effect to the transactions contemplated application of the proceeds of any Borrowing made in this Agreementconnection therewith as though made on and as of such date; and
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the application of any Borrowing made in connection therewith that constitutes an Event of Default or an Unmatured Default;
(b) the Agent shall have received such other approvals, opinions, or documents as the Agent, or the Majority Lenders through the Agent, may reasonably request, and time is such approvals, opinions, and documents shall be satisfactory in form and substance to the Agent;
(c) the Arranger shall not have presented to Parent, the Borrower or any of their respective Subsidiaries a then available alternative debt financing (other than a debt financing to either of the essence in respect Utilities) the terms of each thereof. Subject which are reasonable and prudent and the proceeds of which would be available for the purposes to which the prior approval proceeds of Required Lenderssuch Advances then requested to be made would otherwise be put; and
(d) the trading level, Lenders may fund any for the ten trading sessions preceding the date of such Borrowing, and Administrative of the AER Notes (which shall be determined by the Agent may issue any LC, without all conditions being satisfied, but, to taking an average trading spread from the extent permitted by Law, the same Quoting Dealers) shall not be deemed have been greater than 650 basis points above the yield on the relevant U.S. Treasury security with a final maturity comparable to be a waiver that of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingAER Notes.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition to the conditions stated precedent set forth in SECTION 7.1 Section 4.01, the obligation of each Lender to make any Construction Loan and/or any Contingency Loan shall be subject to satisfaction, in a manner satisfactory to (x) in the case of the initial Funding, each Creditor and SECTION 7.2(y) in the case of any subsequent Funding, Lenders will not the Intercreditor Agent, of each of the conditions set forth in Section 4.02 of the Common Agreement, which conditions shall apply, mutatis mutandis, to this Agreement as if they had been fully set out herein (provided that a waiver of any condition under Section 4.02 of the Common Agreement shall be obligated deemed a waiver of such condition hereunder) and of the following conditions, provided that any Loans that are collectively limited to fund (as opposed to continue or convert) any Borrowingthe amount of, and Administrative Agent will not be obligated for purposes of paying, interest and/or Fees due and payable pursuant to issue any LC, as the case may be, unless on the date Section 2.08(a) and/or Section 3.05(a) of such Borrowing or issuance this Agreement (and after giving effect thereto), as any Taxes payable with respect to such interest and Fees) shall solely be subject to the case may be: condition set forth in subsection (b) below:
(a) The Facility Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with an Interest Rate Notice, duly executed by the applicable LC Agreement), as the case may be; Borrower.
(b) all The Facility Administrative Agent shall be satisfied that no proceeds of such Construction Loan and/or Contingency Loan will be, and no proceeds of any Construction Loan and/or Contingency Loan has previously been, applied to pay any amount payable under any Investor Note or in respect of any Note Document.
(c) With respect to any Contingency Loan only, the Facility Administrative Agent shall have received a report of the representations and warranties Independent Engineer stating that the aggregate amount of the Contingency Loans to be made to the Borrower pursuant to such Funding does not exceed, when added to the amount of Contingency Loans previously made, the aggregate amount of Project Costs (other than amounts payable under or in respect of any Company Investor Note or any Guarantor other Note Document) set forth in the Loan Papers are true relevant Notice of Borrowing incurred in connection with the First Modification Agreement, the Second Modification Agreement and correct in all material respects (except any other Additional Works to be executed pursuant to any CFE Change Request or PWC Change Order permitted pursuant to Section 6.02(k) of the extent that (iCommon Agreement. Each document, report and notice delivered pursuant to Section 4.02(a) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); and/or (c) no Material Adverse Event above shall have occurred; (d) no Default or Potential Default shall have occurred be in form and be continuing; (e) substance satisfactory to the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Facility Administrative Agent evidence substantiating any and shall be delivered in sufficient copies for the Facility Administrative Agent and each of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated (unless waived in SECTION 7.1 writing by the Lenders in their sole and SECTION 7.2absolute discretion); provided, Lenders will not however, that there shall be obligated no duplication with respect to fund (as opposed to continue or convert) any Borrowing, the satisfaction of conditions precedent under Sections 3.1 and Administrative Agent will not be obligated to issue any LC, as 3.2 if the case may be, unless Closing Date and a Borrowing Date occur on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the All representations and warranties of any Company or any Guarantor set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects as of such Borrowing Date (except unless such representation or warranty relates solely to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on an earlier date, in which such representations and warranties are based case it shall have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Sizing Model in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated in this Agents and the Lenders.
(f) No Material Adverse Effect has occurred or is continuing since the Closing Date. [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(g) Each Current Project shall be a Project subject to the Master Lease, and if any Current Project is a Commercial Project, then the commercial Host Customer met the Minimum Commercial Credit Standard as of the closing date of the applicable Lease Tranche under the Master Lease for such Current Project.
(h) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document, (ii) each Customer Agreement, (iii) [***] and time is (iii) the Closing Certificate, in each case with respect to a Current Project, duly executed and delivered by each party thereto and in form and substance satisfactory to the Lenders.
(i) With respect to the final Borrowing, the Administrative Agent shall have received copies of the essence True-Up Reports delivered by Borrower to, and accepted by, Lessee [***] with respect to any Current Project or Funded Project.
(j) [***]
(k) To the extent the Master Lease is amended, or waived to permit, [***] terms as described in respect clause (D) of each thereof. Subject the first proviso in Section 6.11(a), no Current Project for a Residential Project has a Customer Agreement with [***] terms or is with a Host Customer with a FICO® score of [***].
(l) To the extent not previously delivered to the prior approval of Required LendersAdministrative Agent, Lenders may fund any Borrowing, and delivery to the Administrative Agent may issue any LCof true, without correct and complete copies of all conditions being satisfied, but, insurance certificates with respect to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingCurrent Project evidencing [***].
Appears in 1 contract
Sources: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans is subject to the prior satisfaction of the following conditions stated in SECTION 7.1 (unless waived pursuant to Section 9.12(a)); provided, however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, 3.2 if the Closing Date and Administrative Agent will not be obligated to issue any LC, as the case may be, unless initial Borrowing Date occur on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: same Business Day:
(a) Administrative Agent shall have timely received therefor Delivery of an Officer’s Certificate executed by a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all Responsible Officer of the Borrower in the form of Exhibit N, dated as of the Borrowing Date (a “Borrowing Date Certificate”):
(i) certifying that all representations and warranties of any Company or any Guarantor set forth in made by each Loan Party under the Loan Papers Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent modified by materiality by their own terms, which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are be true and correct in all respects. Each condition precedent respects as of such Borrowing Date (unless such representation or warranty relates solely to an earlier date, in this Agreement is which case it shall have been true and correct in all material respects as of such earlier date); provided, however, that with respect to each System, the Borrower shall only be required to make the Eligibility Representations for such System as of the first Borrowing Date on or after the date such System becomes subject to the transactions contemplated Financing Documents;
(ii) certifying that no Default or Event of Default has occurred and is continuing or will result from the Borrowing of such Loan;
(iii) certifying that the Borrower is in this Agreement, and time is compliance with Section 6.1 as of the essence most recent Quarterly Date;
(iv) either (x) certifying that no Watched Funds exist or (y) setting forth a true, complete and correct list identifying each Subject Fund that is a Watched Fund and the condition or conditions that resulted in such Subject Fund being a Watched Fund;
(v) either (x) certifying that the Borrower is in compliance with the Borrowing Base Requirement or (y) setting forth details of the Borrower’s non-compliance with the Borrowing Base Requirement;
(vi) certifying that no Material Adverse Effect has occurred and is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect has occurred; and
(vii) certifying to the absence of any Bankruptcy Event with respect to Borrower Member or Vivint Solar Parent; *** Confidential treatment has been requested for the portions marked by “***”. The confidential redacted portions have been omitted and filed separately with the Commission
(b) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and the Advance Model in accordance with Section 2.1(a)(iv) that are subsequently reviewed, accepted and approved by the Administrative Agent.
(c) The conditions precedent set forth in Sections 3.3 and 3.4, respectively, with respect to any new Systems or any new Subject Funds added to the Available Borrowing Base for the purpose of making such Borrowing have been satisfied in all respects as of the Borrowing Date (as determined by the Administrative Agent in its reasonable discretion);
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions, including in respect of each thereof. any Subject Fund that becomes subject to this Agreement on or prior to the prior approval making of Required such Loan.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the Agents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Fund identified in the Borrowing Base Certificate, Lenders may fund any the Borrower shall be in compliance with the Borrowing Base Requirement.
(g) After giving effect to such proposed Borrowing, and the Interest Reserve Account shall be funded in an amount greater than or equal to the Interest Reserve Required Amount (as defined in the CADA).
(h) The Administrative Agent may issue any LC, without all conditions being satisfied, but, shall have received a duly executed funds flow memorandum in form and substance acceptable to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingAdministrative Agent.
Appears in 1 contract
Sources: Loan Agreement (Vivint Solar, Inc.)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (d) and SECTION 7.2, Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Revolving Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent must have received and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance and such approval has not expired or been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance must be on the current Approved List and such inclusion on the Approved List has not expired or been rescinded;
(b) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.03;
(c) immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of LC Borrowing);
(together with the applicable LC Agreement), as the case may be; (bd) all each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); ;
(ce) no Material Adverse Default, Event shall have occurred; (d) no Default of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; (e) continuing at the funding time of the making of such Borrowings and issuance Advance or shall result upon the making of such LC, as the case may be, is permitted by Law; and Advance;
(f) upon the reasonable request of Administrative AgentReinvestment Period shall not have terminated; and
(g) after giving effect to such Advance, Borrower shall deliver to Administrative Agent evidence substantiating any the aggregate outstanding principal balance of the matters Advances shall not exceed the sum of:
(i) the Aggregate Net Collateral Balance, minus
(ii) the Minimum Equity Amount, plus
(iii) the aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such BorrowingPrincipal Collection Subaccount constituting Principal Proceeds. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.USActive 51774144.2053776213.6-67-
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make a Loan on the occasion of any Borrowing (including the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the further conditions stated precedent that on the Borrowing Date of such Borrowing or Issuance:
(a) the representations and warranties contained in SECTION 7.1 ARTICLE VII are correct on and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any of the date of such Borrowing, upon giving effect to such Borrowing and Administrative Agent will not be obligated to issue any LCthe application of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case may beof Acquisition Loan Borrowings, unless 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 Floor Plan Borrower that is requesting the Borrowing, (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) each Request for Borrowing (and the acceptance of the proceeds of such Borrowing) shall constitute a certification, representation and warranty by the Company that on the date of such Borrowing the statements contained in this Section 8.3 are true;
(d) following the making of such Borrowing or issuance Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have a first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect thereto)to such Borrowing, as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) if such Borrowing is a Acquisition Loan Borrowing, the facts on which aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such representations Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the 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 warranties are based have been changed by transactions contemplated or permitted by (v) the Loan Papers)aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; and
(e) no party (other than the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver the Floor Plan Agent or a Lender) to Administrative Agent evidence substantiating any of Intercreditor Agreement executed in connection with any Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the matters contractual subordination provision thereof in the Loan Papers whole or in part or has otherwise breached its material obligations thereunder which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct dispute, contest or breach involves $1,000,000 or more in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreementcollateral, and time is such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the essence in respect of each thereof. Subject Agent or the Floor Plan Agent to such other party and the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make Term Loans on each Credit Date (including the Closing Date) is subject to the satisfaction (or waiver) of the following further conditions stated precedent:
(1) With respect to any Term Loan (other than the Interim Order Term Loan) that is made after the Closing Date, the Final DIP Financing Order shall have been entered by the Bankruptcy Court, each such order shall be in SECTION 7.1 form and SECTION 7.2substance satisfactory to the Required Lenders (and with respect to any provisions that affect the rights or duties of the Administrative Agent, the Administrative Agent) in their sole discretion and such order shall be in full force and effect and shall not have been reversed, modified, amended, stayed or vacated absent the prior written consent of the Required Lenders will (and with respect to amendments, modifications or supplements that affect the rights or duties of the Administrative Agent, the Administrative Agent).
(2) The Borrower shall have delivered to the Administrative Agent a duly executed and completed Borrowing Request in accordance with Section 2.02.
(3) The Collateral Agent, for the benefit of the Secured Parties, shall have valid and perfected Liens on all Collateral, to the extent contemplated hereby (including, but not be obligated to fund (limited to, as opposed to continue or convert) any Borrowingcontemplated by Schedule 1.01(3)), and Administrative Agent will not pursuant to the other Loan Documents, including the applicable DIP Financing Order.
(4) The Loan Parties shall be obligated to issue any LCin compliance in all material respects with the Interim DIP Financing Order and the Final DIP Financing Order, as the case may be, unless on the date .
(5) The making of such Borrowing Term Loan shall not violate any material applicable requirement of law and shall not be enjoined, temporarily, preliminarily or issuance permanently.
(6) The Loan Parties shall be in compliance in all material respects with each First Day Order and after giving effect thereto), as Second Day Order then in effect.
(7) There shall not have occurred a Material Adverse Effect since the case may be: Closing Date.
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the 8) The representations and warranties of any Company the Loan Parties contained in Article III or any Guarantor set forth other Loan Document, or which are contained in the Loan Papers are any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on unless otherwise qualified by materiality in which case such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material ) on and as of the Credit Date, both before and immediately after giving effect to the transactions contemplated in this Agreement, and time is making of the essence in respect Term Loan on such Credit Date and the application of each thereof. Subject to the prior approval of Required Lendersproceeds therefrom, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, as though made on such date; provided that to the extent permitted that such representations and warranties specifically refer to an earlier date, then such representations and warranties shall be true and correct in all material respects (unless otherwise qualified by Lawmateriality in which case such representations and warranties shall be true and correct in all respects) as of such earlier date; provided, further, any representations and warranties of the Loan Parties in any Loan Document that refer to any schedule, exhibit or similar annex shall be in each case subject to Schedule 1.01(3).
(9) As of the applicable Credit Date, (i) no Default or Event of Default shall exist or would result from the making of such Term Loan and the application of proceeds therefrom and (ii) the Borrowers shall be in pro forma compliance with the covenant set forth in Section 6.14.
(10) The Administrative Agent shall have received a certificate, dated as of applicable Credit Date and signed by a Financial Officer of the Borrower, confirming compliance with the conditions precedent set forth in this Section 4.02.
(11) The Borrower shall have paid (or caused to be paid) to the Administrative Agent and Lenders the fees and expenses then earned, due and payable under the Loan Documents (including, without limitation, the same fees and expenses of the Lender Advisors required to be paid hereunder and under Section 14.01 of the RSA). For the avoidance of doubt, all prepetition fees of the Lender Advisors shall not be paid in full pursuant to the terms of the RSA.
(12) Each Borrowing shall be deemed to be constitute a waiver representation and warranty by the Borrower on the date of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or Borrowing, issuance, unless Required Lenders specifically waive each such item amendment, extension or renewal as applicable, as to the matters specified in writingthis Section 4.02.
Appears in 1 contract
Sources: Senior Secured Debtor in Possession Term Loan Credit Agreement (Venator Materials PLC)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lenders to make any Loan on the occasion of any Borrowing on or after the Effective Date is subject to the further conditions stated in SECTION 7.1 and SECTION 7.2precedent that, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: Loan is made:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the The representations and warranties of any Company or any Guarantor each Obligor set forth in this Agreement and in the other Loan Papers are Documents shall be true and correct in all material respects (except to the extent that (iqualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) on and as of the representations and warranties speak date of such Borrowing, except to a specific date or (ii) the facts on which extent any such representations and warranties are based expressly limited to an earlier date, in which case, on and as of the date of such Borrowing, such representations and warranties shall continue to be true and correct in all material respects (except to the extent qualified by materiality or reference to Material Adverse Effect, in which case such applicable representation and warranty shall be true and correct in all respects) as of such specified earlier date.
(b) The Administrative Agent and, if applicable, the applicable Swingline Lender, shall have been changed by transactions contemplated or permitted received (i) in the case of a Borrowing of Revolving Credit Loans, a Borrowing Request by the Loan Paperstime and on the Business Day specified in Section 2.02 and (ii) in the case of a Swingline Borrowing, a Swingline Borrowing Request as required by Section 2.03(b) by the time and on the Business Day specified in Section 2.03(b); .
(c) no Material Adverse Event shall have occurred; (d) no No Default or Potential Event of Default shall have occurred and be continuing; (e) continuing or would result from the funding making of such Borrowings and issuance of such LCLoan.
(d) With respect to any Borrowing after the Effective Date, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall have received a certification of a Principal Financial Officer of WIL-Ireland (which may be contained in the applicable Borrowing Request or Swingline Borrowing Request) certifying that immediately after giving pro forma effect to such Borrowing, (1) WIL-Ireland and its Subsidiaries, taken as a whole, will be Solvent, (2) WIL-Bermuda and its Subsidiaries, taken as a whole, will be Solvent and (3) no Obligor or Material Subsidiary intends, as of such date, to (x) voluntarily commence a case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law, (y) make a general assignment for the benefit of creditors, or (z) apply for or consent to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, examiner, administrator, sequestrator or similar official of such Obligor or Material Subsidiary or a substantial part of its assets, in each case of clauses (x), (y) and (z) within the next 10 Business Days. The acceptance of the benefits of each Borrowing shall constitute the a representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is each of the essence in respect of Obligors to each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement Lenders that each such condition precedent be all of the conditions specified in Section 5.02(a) and 5.02(c) have been satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingof that time.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Weatherford International PLC)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION 7.1 and 5.1 (except SECTION 7.25.1(b)), Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing (including any Competitive Borrowing or Swing line Borrowing, and Administrative Agent will not be obligated to issue any LC), as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: :
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), Competitive Borrowing as the case may be; ;
(b) Administrative Agent shall have received, as applicable, the fees provided for in SECTION 4.3 hereof or any fees then payable as provided for in SECTION 4.2, if applicable;
(c) all of the representations and warranties of any Consolidated Company or any Guarantor set forth in the Loan Papers are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; ;
(d) no Default or Potential Default shall have occurred and be continuing; ;
(e) the funding of such Borrowings and issuance of such LC, as the case may be, Borrowing is permitted by Law; and and
(f) all matters related to such Borrowing must be satisfactory to Determining Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements in CLAUSES (C) and (D) above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Determining Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, Borrowing without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Determining Lenders specifically waive each such item in writing.. 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
Appears in 1 contract
Sources: 364 Day Revolving Credit and Term Loan Agreement (Worldcom Inc /Ga/)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION SECTIONS 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless UNLESS on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: giving
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with TOGETHER WITH the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in SECTIONS 5.3 AND 5.4; (c) all of the representations and warranties of any Company or any Guarantor Loan Party (and, if prior to the Second Capital Date, DCCLP) set forth in the Loan Papers are true and correct in all material respects (except EXCEPT to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (cd) no change in the financial condition, business operations, or prospects of any Loan Party (and, if prior to the Second Capital Date, DCCLP) which could be a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is are permitted by Law; (g) evidence satisfactory to Administrative Agent that such Borrowing may be made without violating the terms of the Senior Notes; (h) in the event all or any part of the proceeds of the Borrowing will be used to finance a loan, advance, or Distribution to Parent to the extent permitted by SECTIONS 9.20 or 9.21, Administrative Agent shall have received all such certifications, financial information, and projections as Administrative Agent may reasonably request; and (fi) all matters related to such Borrowing must be satisfactory to Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless UNLESS Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit Agreement (Logix Communications Enterprises Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make any Loans with respect to a Current Project pursuant to a Borrowing is subject to the prior satisfaction of the following conditions stated in SECTION 7.1 (unless waived pursuant to Section 9.12(a)); provided, however, that there shall be no duplication with respect to the satisfaction of conditions precedent under Sections 3.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, 3.2 if the Closing Date and Administrative Agent will not be obligated to issue any LC, as the case may be, unless a Borrowing Date occur on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: same Business Day:
(a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the All representations and warranties of any Company or any Guarantor set forth in the Loan Papers Parties under the Financing Documents are true and correct in all material respects (except to the extent that (i) the as of such Borrowing Date, other than those representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify modified by materiality by their own terms, [***] Confidential treatment has been requested for such Borrowingthe bracketed portions. Each Notice of Borrowing The confidential redacted portion has been omitted and LC Agreement delivered to Administrative Agent filed separately with the Securities and Exchange Commission. which shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are be true and correct in all respects. Each respects as of such Borrowing Date, (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).
(b) No Default or Event of Default has occurred and is continuing or will result from the making of the Borrowing of such Loan.
(c) Delivery to the Administrative Agent of a Borrowing Notice in accordance with Section 2.1(a)(iii) and a Borrowing Base Certificate and Advance Models in accordance with Section 2.1(a)(iv).
(d) All Liens contemplated to be created and perfected in favor of the Collateral Agent pursuant to the Collateral Documents shall have been so created, perfected and filed in the applicable jurisdictions.
(e) All amounts required to be paid to or deposited with any Secured Party hereunder or under any other Financing Document, and all taxes, fees and other costs payable in connection with the execution, delivery, recordation and filing of the documents and instruments required to be filed as a condition precedent to Section 3.1 and this Section 3.2, shall have been paid in this Agreement is material full (or shall be paid concurrently with the occurrence of such Borrowing) or arrangements for the payment thereof from the Loans shall have been made, which arrangements shall be acceptable to the transactions contemplated Agents and the Lenders.
(f) After giving effect to such proposed Borrowing and any Watched Asset identified in this Agreementthe Borrowing Base Certificate, the Borrower shall be in compliance with the Borrowing Base Requirements.
(g) No Material Adverse Effect has occurred or is continuing since the Closing Date, and, to the Borrower’s Knowledge, no event or circumstance exists that could reasonably be expected to result in a Material Adverse Effect.
(h) Each Current Project shall (i) be a Project subject to a Subject Fund, (ii) satisfy (x) the Eligibility Representations and time is (y) the objective credit requirements of the essence applicable Subject Fund, or otherwise be identified as a Watched System in the Borrowing Base Certificate and (iii) be fully funded by the applicable Investor pursuant to the applicable Project Document, including [***] any Liens granted with respect to such Current Project to SolarCity, as seller, for payment of the Current Project’s purchase price under the applicable Project Document shall have been extinguished.
(i) To the extent not previously delivered to the Administrative Agent, delivery (which delivery may be made electronically through using File Transfer Protocol (FTP) or Hypertext Transfer Protocol Secure (HTTPS)) to the Administrative Agent of true, correct and complete copies of (i) each Project Document in respect of a the Subject Funds and (ii) each thereofCustomer Agreement, in each case with respect to a Current Project.
(j) The requested Borrowing exceeds $5,000,000 or such lesser amount as is remaining under the Commitment. Subject [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission.
(k) No Bankruptcy Event shall have occurred with respect to the prior approval of Required Lenders, Lenders may fund SolarCity.
(l) As reasonably requested by any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, butLender for informational purposes only, to the extent permitted by Lawnot otherwise publicly available and in possession of the Borrower or its Affiliates, the same shall Borrower has delivered to such Lender financial statements and/or credit reports with respect to a Current Project with a commercial Host Customer that does not be deemed to be have a waiver publicly available rating from a recognized national rating agency that was current as of the requirement date that each the Customer Agreement corresponding to such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingCurrent Project was executed.
Appears in 1 contract
Sources: Loan Agreement (Solarcity Corp)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION Section 7.1 and SECTION 7.2Section 7.2 (as applicable), Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: ): (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have received, as applicable, the LC fees provided for in Section 5.4; (c) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (cd) no change in the financial condition or business of the Companies which could reasonably be expected to be a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and or issuance of such LC, as the case may be, LC is permitted by Law; (g) in the event all or any part of the proceeds of the Borrowing will be used to finance a Distribution to the extent permitted by Section 9.21, Administrative Agent shall have received all such certifications, financial information, and projections as Administrative Agent may reasonably request; and (fh) all matters related to such Borrowing must be satisfactory to Required Lenders and their respective counsel in their reasonable determination, and upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that that, as of the Borrowing Date or the date of issuance of the LC, the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of each Lender to make each Advance to be made by it (including the initial Advance) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that the conditions stated described in SECTION 7.1 clauses (d) and SECTION 7.2, Lenders will (e) (other than a Default or Event of Default described in Section 6.01(i)) below need not be obligated satisfied if the proceeds of the Borrowing are used to fund (as opposed Revolving Collateral Loans or Delayed Drawdown Collateral Loans then owned by the Borrower to continue or convert) any Borrowing, and Administrative Agent will not be obligated fund the Revolving Reserve Account to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: extent required under Section 8.04;:
(a) subject to Section 2.02, the Administrative Agent must have received and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance and such approval has not expired or been rescinded or the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance must be on the current Approved List;
(b) the Administrative Agent shall have timely received therefor a Notice of Borrowing or a with respect to such Advance (including the Borrowing Base Calculation Statement attached thereto, all duly completed) delivered in accordance with Section 2.03;
(c) immediately before and after the making of such Advance on the applicable Borrowing Date, each Coverage Test shall be satisfied and the Tranche Minimum OC Coverage Test for each Tranche shall be satisfied (as demonstrated on the Borrowing Base Calculation Statement attached to such Notice of LC Borrowing);
(together with the applicable LC Agreement), as the case may be; (bd) all each of the representations and warranties of any Company or any Guarantor set forth the Borrower, the Servicer and the Equityholder contained in the Loan Papers are Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan Papersexpressly 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); ;
(ce) no Material Adverse Default, Event shall have occurred; (d) no Default of Default, Potential Servicer Removal Event or Potential Default Servicer Removal Event shall have occurred and be continuing; (e) continuing at the funding time of the making of such Borrowings and issuance Advance or shall result upon the making of such LC, as the case may be, is permitted by Law; and Advance;
(f) upon the reasonable request of Administrative AgentReinvestment Period shall not have terminated; and
(g) after giving effect to such Advance, Borrower shall deliver to Administrative Agent evidence substantiating any the aggregate outstanding principal balance of the matters Advances shall not exceed the sum of:
(i) the Aggregate Net Collateral Balance, minus
(ii) the Minimum Equity Amount, plus
(iii) the aggregate amounts on deposit in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingPrincipal Collection Subaccount constituting Principal Proceeds.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Blackstone / GSO Secured Lending Fund)
Conditions Precedent to Each Borrowing. In addition to the conditions stated in SECTION Sections 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: ): (a) Administrative Agent shall have timely received therefor a Borrowing Notice of Borrowing or a Notice of LC Request (together with the applicable LC Agreement), as the case may be; (b) Administrative Agent shall have timely received, as applicable, the LC fees provided for in Sections 5.4 and 5.5; (c) all of the representations and warranties of any each Company or any Guarantor set forth in the Loan Papers Documents are true and correct in all material respects (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based have been changed by transactions contemplated or permitted by the Loan PapersDocuments); (cd) no change in the financial condition or business of any Company which could be a Material Adverse Event shall have occurred; (de) no Default or Potential Default shall have occurred and be continuing; (ef) the funding of such Borrowings and issuance of such LC, as the case may be, is are permitted by Law; and (fg) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers Documents which are necessary to enable Borrower to qualify for such Borrowing. Each Borrowing Notice of Borrowing and LC Agreement Request delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writing.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Acx Technologies Inc)
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make the Loan on the occasion of a Borrowing on or after the Effective Date shall be subject to the conditions stated in SECTION 7.1 condition precedent that the Effective Date shall have occurred and SECTION 7.2, Lenders will not be obligated to fund (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as the case may be, unless on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: Borrowing:
(a) Administrative Agent The following statements shall have timely received therefor a be true (and each of the giving of the Notice of Borrowing or and the acceptance by the Borrower of the proceeds of the Borrowing shall constitute a Notice representation and warranty by the Borrower that on the date of LC the Borrowing such statements are true):
(together with the applicable LC Agreement), as the case may be; (bi) all of the representations and warranties of any Company or any Guarantor set forth the Borrower contained in the Section 4.01 and in each other Loan Papers Document are true and correct in all material respects on and as of the date of such Borrowing, before and after giving effect to such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date (except to the extent that (i) the representations and warranties speak to a specific date or (ii) the facts on which such representations and warranties are based expressly relate to an earlier date in which case such representations and warranties shall have been changed by transactions contemplated or permitted by the Loan Papers); (c) no Material Adverse Event shall have occurred; (d) no Default or Potential Default shall have occurred and be continuing; (e) the funding of such Borrowings and issuance of such LC, as the case may be, is permitted by Law; and (f) upon the reasonable request of Administrative Agent, Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent material respects on each earlier date);
(ii) there shall exist no Adverse Proceeding that could be reasonably likely to have a Material Adverse Effect; and
(iii) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, that constitutes a Default.
(b) The Collateral Agent (for the benefit of the Secured Parties) shall have obtained a valid and perfected first priority (other than Permitted Liens) lien on and security interest in this Agreement is material the Collateral and the Borrower shall have executed or authorized the Collateral Agent to execute, as applicable, and delivered UCC financing statements, and any other financing statements or other registrations or filings under any personal property security legislation of any other jurisdiction as may be reasonably required by the Administrative Agent, to the transactions contemplated Administrative Agent.
(c) The Borrower shall have notified the Lender in this Agreement, and time is of writing as to the essence proposed Drawdown Date in respect of each thereof. Subject such Borrowing and shall have delivered to the Lender a duly executed Notice of Borrowing in respect of such Borrowing.
(d) On or prior approval to the date of Required Lenders, Lenders may fund any the proposed Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, there shall be credited to the extent permitted Collateral Account Collateral with a sufficient aggregate Prevailing Market Value to cause the Actual LTV Ratio (computed after giving effect to the proposed Borrowing) to be less than or equal to the Initial LTV.
(e) The Lender shall have received the Promissory Note made and duly executed by Lawthe Borrower payable to the Lender in the amount of the Loan.
(f) The Borrower shall have paid all applicable, documented and reasonable fees and expenses of the same Lender and the Custodian for which invoices have been presented at least one Business Day prior to the applicable Drawdown Date or such later date to which the Borrower and the Lender may agree (including the documented and reasonable fees, costs and expenses of legal counsel to the Lender and the Custodian); provided that the Borrower shall not be deemed required to pay an amount in aggregate in excess of U.S.$50,000 in respect of such fees and expenses.
(g) The Lender shall have received such other information, approvals, opinions or documents as the Lender may reasonably request.
(h) No Blocking Event shall be a waiver continuing or would result from the proposed Loan.
(i) The Lender shall have received the results of lien searches with respect to the requirement that each Borrower, such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingresults being satisfactory to the Lender.
Appears in 1 contract
Conditions Precedent to Each Borrowing. In addition The obligation of the Lender to make an Advance on the occasion of each Borrowing shall be subject to the conditions stated in SECTION 7.1 precedent that the Effective Date shall have occurred and SECTION 7.2, Lenders will not on the date of such Borrowing:
(a) the following statements shall be obligated to fund true (as opposed to continue or convert) any Borrowing, and Administrative Agent will not be obligated to issue any LC, as each of the case may be, unless giving of the applicable Notice of Borrowing and the acceptance by the Borrower of the proceeds of such Borrowing shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or issuance (and after giving effect thereto), as the case may be: (a) Administrative Agent shall have timely received therefor a Notice of Borrowing or a Notice of LC (together with the applicable LC Agreement), as the case may be; (b) all of the representations and warranties of any Company or any Guarantor set forth in the Loan Papers such statements are true and correct in all material respects (except to the extent that true):
(i) the representations and warranties speak contained in Section 4.01 are correct on and as of the date of such Borrowing, before and after giving effect to a specific date or such Borrowing and to the application of the proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result from such Borrowing or from the facts on which application of the proceeds therefrom, that constitutes a Default;
(b) the Lender shall have received such representations and warranties are based have been changed by transactions contemplated other approvals, opinions or permitted by documents as the Loan Papers); Lender may reasonably request;
(c) no Material Adverse Event the Lender shall have occurred; be satisfied, in its reasonable discretion, that the Accounting presented to it in connection with such Borrowing shall demonstrate that the Borrower requires the funds from such Borrowing to meet its working capital needs for the next thirty (30) days;
(d) no Default or Potential Default the Borrower shall have occurred delivered to the Lender within seven Business Days of the date hereof, the audited Consolidated balance sheet of the Borrower and be continuing; its Subsidiaries as at January 31, 2001 (and the related Consolidated statements of income and cash flows of the Borrower and its Subsidiaries for the fiscal year then ended (the "Audited Financial Statements"), accompanied by an unqualified opinion of KPMG, LLP, independent public accountants, which fairly present the Consolidated financial condition of the Borrower and its Subsidiaries as at such date and the Consolidated results of the operations of the Borrower and its Subsidiaries for the period ended on such date, all in accordance with generally accepted accounting principles consistently applied;
(e) the funding of such Borrowings Audited Financial Statements are similar in all material respects as to form and issuance of such LC, as content to the case may be, is permitted by LawUnaudited Financial Statements; and and
(f) upon the reasonable request UCC-1 financing statements filed by Support Net Inc. with ▇▇▇▇▇▇▇▇ County, Ohio and the Ohio Secretary of Administrative AgentState on August 11, 1998 and July 31, 1998 regarding certain assets of the Borrower shall deliver to Administrative Agent evidence substantiating any of the matters in the Loan Papers which are necessary to enable Borrower to qualify for such Borrowing. Each Notice of Borrowing be terminated or amended on terms and LC Agreement delivered to Administrative Agent shall constitute the representation and warranty by Borrower to Administrative Agent that the statements above are true and correct in all respects. Each condition precedent in this Agreement is material conditions satisfactory to the transactions contemplated in this Agreement, and time is of the essence in respect of each thereof. Subject to the prior approval of Required Lenders, Lenders may fund any Borrowing, and Administrative Agent may issue any LC, without all conditions being satisfied, but, to the extent permitted by Law, the same shall not be deemed to be a waiver of the requirement that each such condition precedent be satisfied as a prerequisite for any subsequent funding or issuance, unless Required Lenders specifically waive each such item in writingLender.
Appears in 1 contract
Sources: Credit Agreement (Medplus Inc /Oh/)