Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect of the initial Borrowing) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Period: (a) in the case of the initial Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date; (b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15); (c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied; (d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected; (e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02; (f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency; (g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied; (h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date); (i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance; (j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied; (k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and (l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advance.
Appears in 2 contracts
Sources: Credit and Security Agreement (TCW Direct Lending VII LLC), Credit and Security Agreement (TCW Direct Lending VII LLC)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Group 1 Automotive Inc), Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect make, continue or convert Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Term Lender to continue or convert Term Facility Advances, or the obligation of the Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of a Borrowing pursuant to Section 2.3(a) or the initial Borrowing hereundercontinuation or conversion of an Advance pursuant to Section 2.3(b), before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing, conversion or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no DefaultAfter giving effect to (A) a requested Borrowing, Event conversion or continuation of Default or Early Amortization Event shall have occurred a Revolving Facility Advance, the Unused Revolving Facility Commitment is not less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and be continuing at (D) a requested Borrowing consisting of an Acceptance, neither the time of Unused Revolving Facility Commitment nor the making of such Advance or shall result upon the making of such AdvanceUnused Acceptance Sublimit is less than zero;
(jiii) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event No event has occurred and is continuing, or would result from such Borrowing, conversion or continuation, which constitutes an Event of Default or Default;
(iv) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lv) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceBorrowing.
Appears in 2 contracts
Sources: Loan Agreement (Cutter & Buck Inc), Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders Agent, the Floor Plan Agent or a Lender) to any intercreditor agreement has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Agent or the Floor Plan Agent to such other party and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders Lender to make each an Advance (including any such Advance in respect of the initial Borrowing) on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Period:
(a) in the case of the initial Borrowing hereunder, the conditions precedent set forth The representations and warranties contained in Section 3.01 shall have been fully satisfied 4.01 are true, accurate and correct in all material respects on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated and as of the Borrowing Date, to the effect that, in the case date 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 except for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the those representations and warranties of the Borrower contained in this Agreement and the other Facility Documents expressly referring to another date, which shall be true true, accurate and correct in all material respects as of such Borrowing Date (except date), before and after giving effect to the extent such representations Borrowing and warranties expressly relate to any earlier datethe application of the proceeds there from, in which case such representations as though made on and warranties shall be true and correct in all material respects as of such earlier date;
(b) No Default or Events of Default exist hereunder;
(c) The Borrower shall have delivered the Notice of Borrowing in accordance with the terms of Section 2.02 hereof;
(d) The Lender shall have received a Promissory Note payable to the order of the Lender for the amount of the borrowing;
(e) The Lender shall have received a duly executed Compliance Certificate from the Borrower relating to compliance with the Financial Covenants set forth in Section 4.05 this Agreement;
(f) No material adverse change in or material disruption of conditions in the financial, banking or capital markets, which in the reasonable discretion of the Lender materially affects the Borrower, shall have occurred;
(g) The Lenders shall have a valid and perfected first-priority security interest in the Collateral, subject to Permitted Liens;
(h) Notwithstanding Section 3.02 (g), the Borrower may request an Advance for the first US $500,000 from the Advance Amount, even if the Lender does not have a first-priority security interest in the real estate mortgaged through the Mortgage Agreement and a first priority security interest in the deposit account subject to the Deposit Account Control Agreement, if the Borrower is in compliance with the other Conditions Precedent and all other terms and conditions of this Agreement, but the Borrower may not request any additional Advances and the Lender shall be under no obligation to make any additional Advances until the Mortgage Agreement shall have been filed, the Borrower shall have complied with the covenant set forth in Section 4.02(l), the Lender shall have a first priority security interest in the real estate mortgaged through the Mortgage Agreement and the Deposit Account Control Agreement shall have been executed;
(i) no Default, Event The ratio of Default or Early Amortization Event Borrower’s Total Assets to Accreted Principal Amount shall have occurred exceed 1.75 to 1.0 and be continuing at the time its ratio of the making of such Advance or Current Assets to Accreted Principal Amount shall result upon the making of such Advance;exceed 1.0 to 1.0; and
(j) no Low Diversity Event has occurred Signet Healthcare Partners, G.P. shall own and is continuing control, in the aggregate, at the time least 35% of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time outstanding voting rights of the making of such Advance, Borrower and the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as outstanding common stock of the date Borrower, and shall have at least one of purchase in connection with any acquisition its employees on the Board of additional Collateral Obligations with the proceeds Directors of the applicable AdvanceBorrower.
Appears in 1 contract
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders Agent, the Floor Plan Agent or a Lender) to any Iintercreditor Aagreement has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Agent or the Floor Plan Agent to such other party and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect make, continue or convert Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Term Lender to continue or convert Term Facility Advances, or the obligation of the Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of a Borrowing pursuant to Section 2.3(a) or the initial Borrowing hereundercontinuation or conversion of an Advance pursuant to Section 2.3(b), before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing, conversion or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no DefaultAfter giving effect to (A) a requested Borrowing, Event conversion or continuation of Default or Early Amortization Event shall have occurred a Revolving Facility Advance, neither the Unused Revolving Facility Advance Sublimit nor the Unused Revolving Facility Commitment is less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; and be continuing at (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the time of Unused Revolving Facility Commitment nor the making of such Advance or shall result upon the making of such AdvanceUnused SLC Sublimit is less than zero;
(jiii) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event No event has occurred and is continuing, or would result from such Borrowing, conversion or continuation, which constitutes an Event of Default or Default;
(iv) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lv) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceBorrowing.
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case ARTICLE VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is a Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Revolving Credit Loan and the Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) with respect to Borrowings under the Revolving Credit Loan Commitment, the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) with respect to Borrowings under the initial BorrowingRevolving Credit Loan Commitment, evidence but excluding Borrowings during the Transition Period, the Company shall have certified that there is no change in the total Obligors on calculation of the applicable Revolving Credit Borrowing Date are equal Base that would result in a reduction of the amounts available for borrowing thereunder since the last Availability Analysis provided to or greater than fifteen (15)the Agent;
(c) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of the initial Borrowing hereunderRevolving Credit Borrowings (including Revolving Credit Swing Line Loans), a certificate Default or a Revolving Credit Event of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, Default or (iii) in the case of Floor Plan Borrowings (including Floor Plan Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the Collateral Obligations owned by Floor Plan Borrower that is requesting the Borrower on the Borrowing Date that the Concentration Limits are satisfiedBorrowing, (B) no Floor Plan Event of Default under Section 11.3(c), (f) or (g) exists, and (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more;
(d) delivery each request for Borrowing (and the acceptance of the Collateral (including any original promissory noteproceeds of such Borrowing) shall constitute a certification, executed assignment agreements representation and electronic copies warranty by the Company that on the date of any other Related Documents such Borrowing the statements contained in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with this Section 12.20 shall have been effected8.3 are true;
(e) following the Lenders making of such Borrowing or Issuance of any Letter of Credit and all other Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (i) if such Borrowing is a Floor Plan Loan Borrowing, the aggregate principal amount of all Floor Plan Loans outstanding plus all Floor Plan 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 Facility Agent shall have received a Notice of first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing with respect after giving effect to such Borrowing, (ii) if such Borrowing is a Revolving Credit Loan Borrowing, the aggregate principal amount of all Revolving Credit Loans outstanding plus all Revolving Credit Swing Line Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Revolving Credit Loan Advance delivered in accordance with Section 2.02Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Revolving Credit Loans outstanding shall not exceed the Revolving Credit Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments;
(f) immediately no party (other than the Agent, the Floor Plan Agent or a Lender) to any Intercreditor Agreement executed in connection with any Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the making of Agent or the Floor Plan Agent to such Advance on other party and the applicable Borrowing Date, there is no Borrowing Base Deficiency;Company; and
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except with respect to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding Borrowings under the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Credit Loan Commitment in connection with any acquisition for which the total consideration is Forty Million and No/100 Dollars ($40,000,000) or greater (exclusive of additional Collateral Obligations amounts paid for New Motor Vehicle inventory), the Company shall have provided calculations for the financial covenants contained in Section 10.11 through Section 10.14, which calculations demonstrated compliance with all such financial covenants on a pro forma basis after giving effect to the proceeds of the applicable Advanceacquisition for which such Borrowing is requested.
Appears in 1 contract
Sources: Revolving Credit Agreement (Asbury Automotive Group Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect or continue Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of the initial a Borrowing hereunderpursuant to Section 2.3, before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no Default, Event of Default or Early Amortization Event shall have occurred The Security Documents continue in full force and be continuing at the time effect to secure all Obligations of the making of such Advance or shall result upon the making of such AdvanceBorrower under this Agreement and any other Loan Documents;
(jiii) no Low Diversity Event has occurred The Borrower warrants and is continuing at represents to the time Lenders that the only encumbrances and other matters of record affecting the Collateral as of the making date of such Advance or, if a Low Diversity Event has occurred and is continuing at this Agreement are those which were of record on the time date the existing UCC filings were placed of the making of such Advance, the Low Diversity Threshold is satisfiedrecord or those which are Permitted Liens;
(kiv) only in After giving effect to (A) a requested Borrowing or continuation of a Revolving Facility Advance, neither the case Unused Revolving Facility Commitment nor the Borrowing Base will be less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and (D) a requested Borrowing consisting of an Advance used for other Acceptance, neither the Unused Revolving Facility Commitment nor the Unused Acceptance Sublimit is less than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event zero;
(v) No event has occurred and is continuing, or would result from such Borrowing or continuation, which constitutes an Event of Default or Default;
(vi) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lvii) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advance.Borrowing. ARTICLE IV
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is a Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The Each Advance to be made hereunder, if any, (including the initial Advance), and the election of each Conduit Lender and the obligation of the Lenders each other Lender, to make each Advance (including any such Advance in respect of the initial Borrowing) fund, on each Borrowing Date shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Period:
(a) in the case of Required Lenders (with a copy to the initial Borrowing hereunder, the conditions precedent set forth in Section 3.01 Administrative Agent) shall have been fully satisfied on or prior to the applicable Borrowing Date;received
(bi) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02Advance;
(fii) and if such date is an Asset Acquisition Date, the related Asset Acquisition Package for the assets to be acquired from the proceeds of such Advance (including, without limitation, duly executed copies of each Intellectual Property Security Agreement then contemplated to be entered into as of the related Asset Acquisition Date), and the related Asset Acquisition Procedures shall have been complied with (including, without limitation, the filing, registration or recording of all additional financing statements and the registering or recording of any Intellectual Property Security Agreements necessary to ensure the Collateral Agent’s first priority perfected security interest (on behalf of the Secured Parties) in the assets being acquired);
(b) if such Borrowing Date is an Asset Acquisition Date, (i) the Acquisition/Disposition LTV Ratio shall be less than the Maximum LTV Ratio then in effect after giving effect to such acquisition and such Advance, (ii) the DSCR (after giving pro forma effect to the proposed Borrowing) shall be equal to or greater than the Minimum DSCR and (iii) the LTV Ratio shall be less than the Maximum LTV Ratio then in effect after giving effect to such Advance, in each case, as demonstrated in the calculations attached to the applicable Notice of Borrowing;
(c) if such Borrowing Date is an Asset Acquisition Date and an additional Loan Party is being joined on such date pursuant to Section 2.01(a) then:
(i) good standing certificates with respect to each of the jurisdictions where each such additional Loan Party is organized; |US-DOCS\161499384.7||
(ii) legal opinions (addressed to the Administrative Agent, the Lenders and their permitted assignees) of counsel to the Loan Parties covering such matters with respect to each such additional Loan Party, as any Agent or its counsel shall reasonably request, each in form and substance substantially the same as the opinions delivered on the Closing Date or otherwise reasonably satisfactory to the Person requesting such opinion; and
(iii) each such additional Loan Party shall have executed and delivered a Joinder Agreement in the form of Exhibit A.
(d) if such Borrowing Date is not an Asset Acquisition Date, (i) the LTV Ratio shall be less than the Maximum LTV Ratio then in effect after giving effect to such Advance and (ii) the DSCR (after giving pro forma effect to the proposed Borrowing) shall equal or exceed the DSCR in effect immediately prior to the Borrowing (or, if the Borrowers have completed an acquisition of assets during the then-current Collection Period, the DSCR on a pro forma basis after giving effect to such acquisition of assets, in effect as of the date of the Notice of Borrowing), in each case, as demonstrated in the calculations attached to the applicable Notice of Borrowing; provided that, (x) the Aggregate Collateral Value will be calculated on a pro forma basis to exclude the Appraisal Values and Non-Appraisal Values of each Specified Music Product and (y) the Administrative Agent and each Lender will be provided evidence reasonably satisfactory to them of the Allocable Debt for each Music Product as of such date after giving effect to such Advance;
(e) immediately after the making of such Advance on the applicable Borrowing DateDate (and the concurrent consummation of any acquisitions of assets financed by such Advance), there is no the aggregate outstanding principal balance of the Advances (x) shall be less than or equal to the Aggregate Collateral Value at such time, as demonstrated in the calculations attached to the applicable Notice of Borrowing Base Deficiencyand (y) shall not exceed the Commitment Amount at any time;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(hf) each of the representations and warranties of the Borrower each Loan Party contained in this Agreement and the other Facility Documents 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 such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date as if made on such date);
(g) evidence satisfactory to the Required Lenders that any necessary Borrower Liability Reserve Accounts has been established;
(h) if such Borrowing Date is an Asset Acquisition Date, Lien searches pursuant to the UCC and copyright searches at the United States Copyrights Office demonstrating that the related assets to be acquired on such date are free and clear of liens;
(i) no DefaultManager Termination Event, Unmatured Event of Default or Early Amortization Event of Default shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance, and (ii) the amount on deposit in the Borrower Interest Reserve Account shall be at least equal to the Interest Reserve Required Amount;
(j) no Low Diversity Event has occurred if such Borrowing Date is an Asset Acquisition Date, all terms and is continuing at conditions of each applicable Asset Transfer Agreement required to be satisfied in connection with the time transfer of any asset being pledged hereunder on such Borrowing Date, including the |US-DOCS\161499384.7|| perfection of the making of such Advance orapplicable Borrower’s and the Secured Parties’ interests therein, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfiedshall have been satisfied in full;
(k) only if such Borrowing Date is an Asset Acquisition Date, the Borrowers and the Manager shall have taken all steps necessary under all Applicable Law in order to cause to exist in favor of the case Collateral Agent, for the benefit of the Secured Parties, a valid, subsisting and enforceable first priority perfected security interest in each applicable Borrower’s right, title and interest in any additional assets being acquired by such Borrower in connection with such Borrowing Date;
(l) receipt of all fees and expenses to be received by each Agent and each Lender (including fees and expenses of each Agent’s counsel) on or prior to such Borrowing Date pursuant to the Lender Fee Letter and the BNY Fee Schedule or otherwise have been received;
(m) evidence satisfactory that after giving pro forma effect to such Advance, the outstanding principal amount of all Advances does not exceed 57.5% of the Aggregate Collateral Value;
(n) if such Borrowing Date is an Advance used Asset Acquisition Date, evidence satisfactory to each Lender that the Minimum Equity Payment for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event Music Products being acquired on such Asset Acquisition Date has occurred and is continuingbeen funded by the Equity Holders of the applicable Borrower; and
(lo) an officer’s certificate from the provisions of Lead Borrower stating that all conditions precedent under this Section 10.02 3.03 have been satisfied or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable Advancewaived.
Appears in 1 contract
Sources: Credit and Security Agreement (Warner Music Group Corp.)
Conditions Precedent to Each Borrowing. The obligation of the Lenders to make each Advance (including any such Advance in respect make, continue or convert Revolving Facility Advances, or the obligation of the initial Borrowing) on each Borrowing Date Letter of Credit Issuer to issue Letters of Credit or the Credit Card Issuer to issue Credit Cards, shall be subject to the fulfillment of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodfurther conditions precedent:
(a) in On the case date of a Borrowing pursuant to Section 2.3(a) or the initial Borrowing hereundercontinuation or conversion of an Advance pursuant to Section 2.3(b), before and immediately after giving effect thereto, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior to the applicable Borrowing Date;
(b) with respect to the initial Borrowing, evidence that the total Obligors on the applicable Borrowing Date are equal to or greater than fifteen (15);
(c) in the case of the initial Borrowing hereunder, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned by the Borrower on the Borrowing Date that the Concentration Limits are satisfied;
(d) delivery of the Collateral (including any original promissory note, executed assignment agreements and electronic copies of any other Related Documents in Microsoft Word format or portable document format (.pdf) available to the Borrower for each Collateral Obligation) in accordance with Section 12.20 shall have been effected;
(e) the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents following statements shall be true and correct, and the making by the Borrower of the applicable Borrowing Request shall constitute its representation and warranty that on and as of the date of such Borrowing, conversion or continuation, before and immediately after giving effect thereto, the following statements are true and correct:
(i) The representations and warranties contained in Article IV of this Agreement are correct in all material respects as though made on and as of such Borrowing Date (except to the extent date, unless such representations and warranties are expressly relate stated to any be made as of an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(iii) no Default, Event of Default or Early Amortization Event shall have occurred The Security Documents continue in full force and be continuing at the time effect to secure all Obligations of the making of such Advance or shall result upon the making of such AdvanceBorrower under this Agreement and any other Loan Documents;
(jiii) no Low Diversity Event has occurred The Borrower warrants and is continuing at represents to the time Lenders that the only encumbrances and other matters of record affecting the Collateral as of the making date of such Advance or, if a Low Diversity Event has occurred and is continuing at this Agreement are those which were of record on the time date the existing UCC filings were placed of the making of such Advance, the Low Diversity Threshold is satisfiedrecord or those which are Permitted Liens;
(kiv) only in After giving effect to (A) a requested Borrowing, conversion or continuation of a Revolving Facility Advance, neither the case Unused Revolving Facility Commitment nor the Borrowing Base will be less than zero; (B) a requested Borrowing of a Letter of Credit, the Unused Revolving Facility Commitment is not less than zero; (C) a requested Borrowing consisting of a Standby Letter of Credit, neither the Unused Revolving Facility Commitment nor the Unused SLC Sublimit is less than zero and (D) a requested Borrowing consisting of an Advance used for other Acceptance, neither the Unused Revolving Facility Commitment nor the Unused Acceptance Sublimit is less than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event zero;
(v) No event has occurred and is continuing, or would result from such Borrowing, conversion or continuation, which constitutes an Event of Default or Default;
(vi) The most recent financial statements of the Borrower delivered pursuant to Section 5.1(c)(i) present fairly the financial position and results of operations of the Borrower as of the date of, and for the periods presented in, such financial statements, and since the date of such financial statements there has not been any material adverse change in the financial condition or operations of the Borrower; and
(lvii) The Borrower is in compliance with all covenants contained in Article V of this Agreement.
(b) If requested by the provisions Administrative Agent, the Borrower shall have delivered to the Administrative Agent a Notice of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceBorrowing.
Appears in 1 contract
Sources: Loan Agreement (Cutter & Buck Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Floor Plan Loan Commitments of all the Lenders, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is a Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the applicable Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitments; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of the initial Borrowing) on each Borrowing Date Issuing Bank to issue Letters of Credit and the obligation of the Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (and the case acceptance of the initial Borrowing hereunderproceeds of such Borrowing) shall constitute a certification, a certificate of a Responsible Officer of the Borrower, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing DateAgent, the Interest Coverage Test shall be satisfied;
(hFloor Plan Agent or a Lender) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase Intercreditor Agreement executed in connection with any acquisition Permitted New Vehicle Floor Plan Indebtedness has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of additional Collateral Obligations with a notice from the proceeds of Agent or the applicable AdvanceFloor Plan Agent to such other party and the Company.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)
Conditions Precedent to Each Borrowing. The obligation of the Lenders each Lender to make each Advance a Loan (other than a Loan requested via delivery of a Draft under a Drafting Agreement which has not been suspended and/or terminated in accordance with the terms of this Agreement) on the occasion of any Borrowing (including any such Advance in respect the initial Acquisition Loan and the initial Floor Plan Loan) and the obligation of each Issuing Bank to issue Letters of Credit and the obligation of the initial Borrowing) on each Borrowing Date Swing Line Bank to make Swing Line Loans and the obligation of the Floor Plan Agent to execute Drafting Agreements shall be subject to the fulfillment further conditions precedent that on the Borrowing Date of the following conditions; provided that with respect to any Revolving Borrowing, such Borrowing Date shall occur prior to the end of the Revolving Period and (2) with respect to any Term Borrowing, such Borrowing Date shall occur prior to the end of the Ramp Periodor Issuance:
(a) the representations and warranties contained in the case Article VII are correct on and as of the initial date of such Borrowing, upon giving effect to such Borrowing hereunder, the conditions precedent set forth in Section 3.01 shall have been fully satisfied on or prior and to the applicable Borrowing Dateapplication of the proceeds therefrom, as though made on and as of such date (unless expressly limited to an earlier date, in which case, it shall be true as of such date);
(b) no event has occurred and is continuing, or would result from such Borrowing or from the application of the proceeds therefrom, which constitutes (i) a Material Adverse Effect, (ii) in the case of Acquisition Loan Borrowings, a Default or an Event of Default and which has not been waived or amended in accordance with the provisions set forth in Section 13.7 or (iii) in the case of Floor Plan Borrowings (including Swing Line Loans), (A) no Floor Plan Event of Default exists with respect to the initial Floor Plan Borrower that is requesting the Borrowing, evidence that the total Obligors on the applicable Borrowing Date (B) no Floor Plan Event of Default under Section 11.3(c), Section 11.3(f) or Section 11.3(g) exists, (C) no Floor Plan Event of Default under any other subsection of Section 11.3 has continued for sixty (60) days or more, and (D) there are equal to or greater than fifteen (15)no two concurrent Floor Plan Events of Default under any other subsection of Section 11.3;
(c) in each Request for Borrowing (other than a Request for Borrowing taking the case of the initial Borrowing hereunder, a certificate form of a Responsible Officer of the BorrowerDraft) shall constitute a certification, dated as of the Borrowing Date, to the effect that, in the case of the Collateral Obligations owned representation and warranty by the Borrower Company that on the date of such Borrowing Date that the Concentration Limits statements contained in this Section 8.3 are satisfiedtrue;
(d) delivery following the making of the Collateral (including any original promissory note, executed assignment agreements and electronic copies such Borrowing or Issuance of any Letter of Credit and all other Related Documents in Microsoft Word format or portable document format Borrowings to be made on the same day under this Agreement, except as may otherwise be permitted hereunder, (.pdfi) available to if such Borrowing is a Floor Plan Loan Borrowing, the Borrower for each Collateral Obligation) in accordance with Section 12.20 aggregate principal amount of all Floor Plan Loans outstanding plus all Swing Line Loans outstanding shall not exceed the Total Floor Plan Loan Commitment, such Floor Plan Loan Borrowings shall not exceed the Floor Plan Advance Limit, and the Agent shall have been effected;a first priority lien (subject only to carriers’, warehousemen’s and landlords’ Liens described in Section 7.16(b) and Liens described in Section 10.2(f)) on the Motor Vehicles that are being purchased with such Floor Plan Loan Borrowing after giving effect to such Borrowing, (ii) if such Borrowing is an Acquisition Loan Borrowing, the aggregate principal amount of all Acquisition Loans outstanding plus Letters of Credit Obligations outstanding shall not exceed the Acquisition Loan Advance Limit, (iii) if such Borrowing is a Swing Line Loan Borrowing, the aggregate principal amount of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment, (iv) if a Letter of Credit is issued, (A) the total amount of Letter of Credit Obligations outstanding plus the aggregate principal amount of all Acquisition Loans outstanding shall not exceed the Acquisition Loan Advance Limit, (B) the total amount of Letter of Credit Obligations outstanding shall not exceed the aggregate Letter of Credit Commitments of all Issuing Banks and (C) the total amount of Letter of Credit Obligations outstanding in respect of Letters of Credit Issued by the relevant Issuing Bank shall not exceed such Issuing Bank’s Letter of Credit Commitment, and (v) the aggregate principal amount of all Loans and Letter of Credit Obligations then outstanding shall not exceed the Total Commitment; and
(e) no party (other than the Lenders Agent, the Floor Plan Agent or a Lender) to any Intercreditor Agreement has disputed or contested the contractual subordination provision thereof in whole or in part or has otherwise breached its material obligations thereunder which dispute, contest or breach involves $1,000,000 or more in collateral, and such dispute, contest or breach has not been waived, resolved or remedied within thirty (30) days after delivery of a notice from the Agent or the Floor Plan Agent to such other party and the Facility Agent shall have received a Notice of Borrowing with respect to such Advance delivered in accordance with Section 2.02;
(f) immediately after the making of such Advance on the applicable Borrowing Date, there is no Borrowing Base Deficiency;
(g) immediately before and after the making of such Advance on the applicable Borrowing Date, the Interest Coverage Test shall be satisfied;
(h) each of the representations and warranties of the Borrower contained in this Agreement and the other Facility Documents shall be true and correct in all material respects as of such Borrowing Date (except to the extent such representations and warranties expressly relate to any earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date);
(i) no Default, Event of Default or Early Amortization Event shall have occurred and be continuing at the time of the making of such Advance or shall result upon the making of such Advance;
(j) no Low Diversity Event has occurred and is continuing at the time of the making of such Advance or, if a Low Diversity Event has occurred and is continuing at the time of the making of such Advance, the Low Diversity Threshold is satisfied;
(k) only in the case of an Advance used for other than purchasing a Collateral Obligation or funding the Revolving Reserve Account, no Low Diversity Event has occurred and is continuing; and
(l) the provisions of Section 10.02 have been or will be satisfied as of the date of purchase in connection with any acquisition of additional Collateral Obligations with the proceeds of the applicable AdvanceCompany.
Appears in 1 contract
Sources: Revolving Credit Agreement (Group 1 Automotive Inc)