Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.
Appears in 3 contracts
Sources: Credit Agreement (Steele Creek Capital Corp), Credit Agreement (Steele Creek Capital Corp), Credit Agreement (Steele Creek Capital Corp)
Borrowings. If(i) Each Revolving Credit Borrowing shall be made on notice given by the Borrower to the Administrative Agent not later than 1:00 p.m. (New York time) (i) one Business Day, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days, in the case of a Borrowing of Eurodollar Rate Loans, prior to the Conversion Datedate of the proposed Borrowing. Each such notice shall be in substantially the form of Exhibit C (Form of Notice of Borrowing) (a “Notice of Borrowing”), specifying (A) the date of such proposed Borrowing, (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans and (D) for each Eurodollar Rate Loan, the Collateral Manager wishes initial Interest Period or Periods thereof. Loans shall be made as Base Rate Loans unless, subject to purchase Section 2.14 (Special Provisions Governing Eurodollar Rate Loans), the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Notwithstanding anything to the contrary contained in Section 2.3(a) (Swing Loans), if any Notice of Borrowing requests a Revolving Credit Borrowing of Base Rate Loans, the Administrative Agent may make a Swing Loan available to the Borrower in an Asset on behalf aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the Borrower for which corresponding proposed Borrowing shall be reduced accordingly by the Approval Request has been approved principal amount of such Swing Loan. Each Revolving Credit Borrowing shall be in an aggregate amount of not less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof.
(ii) The Administrative Agent shall give to each Revolving Credit Lender prompt notice of the Administrative Agent’s receipt of a Notice of Borrowing with respect to Revolving Credit Borrowings and, if Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the applicable interest rate determined pursuant to Section 2(b2.14(a) and funds in the Trust Account are insufficient to provide for such purchase(Determination of Interest Rate). Each Lender shall, the Collateral Manager shall request a Loan for such purpose by, no later than noon, before 11:00 am. (New York City time, ) on the third Business Day preceding date of the proposed date of such LoanBorrowing, providing make available to the Administrative Agent at its address referred to in Section 11.8 (with a copy to the Borrower) an irrevocable notice Notices, Etc.), in immediately available funds, such Lender’s Ratable Portion of such proposed Borrowing. Upon fulfillment (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably due waiver in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Section 11.1 (Amendments, Waivers, Etc.)) (A) on the Closing Date, of a Loan by causing any domestic or foreign branch or Affiliate the applicable conditions set forth Section 3.1 (Conditions Precedent to Initial Loans and Letters of such Lender to make such Loan Credit), (B) on the First Amendment Effective Date, of the applicable conditions set forth in Section 3 of the First Amendment and may (C) at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction (including the Closing Date and the First Amendment Effective Date), of the applicable conditions to borrowing set forth in this Section 2 3.2 (Conditions Precedent to Each Loan and in Section 7Letter of Credit), the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to after the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon Agent’s receipt of an Expedited Borrowing Requestsuch funds, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject funds available to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 3 contracts
Sources: Credit Agreement (Amc Entertainment Holdings, Inc.), Credit Agreement (Amc Entertainment Inc), Credit Agreement (Amc Entertainment Holdings, Inc.)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Each Loan shall be in made as part of a minimum principal amount Borrowing consisting of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price Loans of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans same Class made by the Lenders of such Class ratably in accordance with their Individual respective Applicable Percentages. The failure of any Lender Maximum Funding Amountsto make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.13 and Section 2.14(c), each Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the Lead Borrower may request in accordance herewith. Each Subject to Section 2.14(c), each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the applicable Borrower to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000. At the time that each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the total Commitments. Borrowings of more than one Type and Class may be outstanding at the same time; provided that there shall not at any time cause be more than a total of ten Eurodollar Borrowings outstanding.
(d) Notwithstanding any Loan to be transferred to any domestic or foreign branch or Affiliate other provision of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the neither Borrower shall pay be entitled to the Lenders elect to convert or continue any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that Borrowing if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to Interest Period requested with respect thereto would end after the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soapplicable Maturity Date.
Appears in 2 contracts
Sources: 364 Day Bridge Credit Agreement (CF Industries Holdings, Inc.), 364 Day Bridge Credit Agreement (CF Industries Holdings, Inc.)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Each Borrowing shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to be made upon the Borrower) an ’s irrevocable notice (which may be in the form of a written Loan Notice, appropriately completed and signed by the Collateral Manager on behalf a Responsible Financial Officer of the Borrower) by electronic mail or facsimile transmission substantially in to the form of Annex B hereto (together with any attachments required in connection therewithAdministrative Agent, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event which must be given not later than 5:00 p.m. New York City time three 9:00 a.m. on the date at least twenty (320) Business Days prior to (or such shorter period as the proposed Administrative Agent may agree in its sole discretion) in advance of the requested date of the LoanTerm A Borrowing, the Lenders each time it receives Term B Borrowing or the Term C Borrowing, as the case may be. Each Loan Notice shall specify (i) the requested date of the Borrowing (which shall be a Business Day) and (ii) the principal amount of Loans to be borrowed. For the avoidance of doubt, the Term A Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and 125,000,000, the Term B Borrowing shall be in an a principal amount of $25,000,000 and the Term C Borrowing shall be in a principal amount of $50,000,000.
(not less than zerob) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestFacility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Loan, and Facility of the Lenders applicable Loans. Each Appropriate Lender shall use commercially reasonable efforts make the amount of its Loan available to make such Loan the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the proposed funding date Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the Expedited Borrowing Request initial Borrowing, Section 5.01) and subject to the terms Term A Draw Conditions, the Term B Draw Conditions and conditions for borrowings otherwise set forth in this Agreementthe Term C Draw Conditions, except that as applicable, the Administrative Agent shall make all funds so received available to the Borrower shall pay to the Lenders any losses, costs or expenses incurred in like funds as received by the Lenders Administrative Agent by wire transfer of such funds in connection accordance with making such Loan on such proposed funding date on instructions provided to (and acceptable to) the date any interest is due under such Loan; provided, that if Administrative Agent by the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Biocryst Pharmaceuticals Inc), Credit Agreement (Biocryst Pharmaceuticals Inc)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall To request a Loan for such purpose byBorrowing, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing an irrevocable Borrowing Request shall be sent to the Administrative Agent via electronic communications or telecopy: (with a copy to the Borroweri) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form case of Annex B hereto (together with any attachments required in connection therewitha Eurocurrency Borrowing of U.S. Loans, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 p.m., Local Time, three (3) Business Days prior to before the proposed date of the Loanproposed Borrowing, (ii) in the Lenders each time it receives case of a Eurocurrency Borrowing Requestof U.K. Loans, not later than 12:00 p.m., Local Time, four (4) Business Days before the date of the proposed Borrowing, or (iii) in the case of an ABR Borrowing of either U.K. Loans or U.S. Loans (other than Swingline Loans), not later than 12:00 noon, Local Time, one (1) Business Day before the date of the proposed Borrowing; provided, that any such notice of an ABR Borrowing to finance the reimbursement of an L/C Disbursement as contemplated by Section 2.04(e) may be given not later than 10:00 a.m., Local Time, on the date of the proposed Borrowing. Unless otherwise agreed to by the Lenders, each Loan Each such Borrowing Request shall be in a minimum principal amount of $500,000 form approved by the Administrative Agent and signed by the Applicable Administrative Borrower. Each such written Borrowing Request shall be specify the following information in an amount (not less than zero) equal to compliance with Section 2.02:
(i) the Purchase Price name of the Asset, together with any purchased accrued interest with respect thereto (as specified in Borrower that the Approval Request) minus Borrowing is being requested on behalf of;
(ii) the balance aggregate amount of the requested Borrowing;
(if anyiii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be Borrowing or a Eurocurrency Borrowing;
(v) in the Trust Account. To case of a Eurocurrency Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period”;
(vi) the location and number of the applicable Borrower’s account to which funds are to be disbursed;
(vii) the Class of such Borrowing;
(viii) whether such Borrowing will be of U.S. Loans or U.K. Loans; and
(ix) to the extent that more than one Lender is a party heretothe Borrowing will be of U.K. Loans, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction currency of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrowing.
Appears in 2 contracts
Sources: Abl Credit Agreement (Claire's Holdings LLC), Abl Credit Agreement (Claire's Holdings LLC)
Borrowings. If, prior to the Conversion Date, If (i) the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved or that appears on the Approved List pursuant to Section 2(b) or (ii) a redemption of Subordinated Notes has been requested by the Collateral Manager and the requirements of Section 3 have been satisfied and funds in the Trust Principal Collection Account and funds in, or that are expected to be deposited by the Funding Time into, the Capital Account are insufficient to provide for such purchasepurchase or redemption of Subordinated Notes, the Collateral Manager shall request a Loan for such purpose byshall, no later than noon10:00 a.m., New York City time, on the third Business Day preceding of the proposed funding date of such Loan, providing provide to the Administrative Agent Lender (with a copy to the Borrower, the Collateral Administrator and the Securities Intermediary) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to ; provided that the proposed date of any proposed funding of a Loan must occur during the Loan, the Lenders each time it receives a Borrowing RequestPeriod. Notices pursuant to this Section 2(c) may be given by telephone if promptly confirmed in writing (including via electronic mail). Unless otherwise agreed to by the LendersLender (including in connection with a Loan to redeem Subordinated Notes), each Loan shall be in a minimum principal amount of $500,000 U.S.$1,000,000 and shall be in an amount (not less than zero) equal to not greater than (i) the product of (x) the Purchase Price of the Asset multiplied by (y) the Initial Principal Balance of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request or Approval List Request, as applicable) minus (ii) the sum of (A) the balance (if any) in the Trust Account. To Principal Collection Account and the extent that more than one Lender is a party hereto, each Loan shall consist of loans made Capital Account and (B) any proceeds expected to be received by the Lenders ratably Borrower in accordance connection with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make the issuance and sale of any Loan Subordinated Notes required or portion of a Loan by causing any domestic or foreign branch or Affiliate expected to be issued pursuant to Section 6 in connection with the purchase of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such LenderAsset. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 72, the Lenders Lender shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request (which date must occur during the Borrowing Period) and the proceeds thereof shall be paid into the Trust Capital Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related AssetAsset or for the redemption of Subordinated Notes pursuant to Section 3. The Lenders Lender shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.
Appears in 2 contracts
Sources: Credit Agreement (Apollo Debt Solutions BDC), Credit Agreement (Apollo Debt Solutions BDC)
Borrowings. If(a) The Revolving Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either ABR Loans or LIBOR Loans (each, a "Type" of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as ABR Loans at all times.
(b) In order to make a Borrowing of Revolving Loans (other than (x) Borrowings of Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(bSECTION 2.2(e), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to SECTION 2.2(e), and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to provide for such purchaseSECTION 2.11), the Collateral Manager shall request a Loan for such purpose by, no Borrower will give the Agent written notice not later than noon11:00 a.m., New York City Charlotte time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to each such Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each such Borrowing to be comprised of ABR Loans; provided, however, that a request for a Borrowing of any Revolving Loans to be made on the Amendment Effective Date may, at the discretion of the Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Revolving Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT A-1 and shall specify (x) the aggregate principal amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (z) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Revolving Borrowing, the Agent will promptly notify each Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing of Revolving Loans that is comprised of ABR Loans shall not be less than $500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments), and the aggregate principal amount of each Borrowing of Revolving Loans that is comprised of LIBOR Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of Revolving Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of ABR Loans; and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Agent for the account of the Borrower at its office referred to in SECTION 11.5 (or at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan or Revolving Loans to be made by such Lender. To the extent the relevant Lenders have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Borrower by 3:30 p.m., Charlotte time, on the Borrowing Date in accordance with SECTION 2.3(a) and in like funds as received by the Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Borrower will give the Agent and the Swingline Lender written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan "Notice of Swingline Borrowing") shall be irrevocable, shall be given in a minimum the form of EXHIBIT A-2 and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 250,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Agent at its office referred to in SECTION 11.5 (if anyor at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Agent will make such amount available to the Borrower in accordance with their Individual SECTION 2.3(a) and in like funds as received by the Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Agent (if the Agent is different from the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Collateral ManagerBorrower), on behalf of the Borrowernot later than 11:00 a.m., may deliver a Borrowing Request to the Administrative Agent on the first or second Charlotte time, one (1) Business Day prior to the proposed date Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as ABR Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Loan, and Swingline Loans (the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date "Refunded Swingline Loans") outstanding on the date any interest such notice is due under given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Agent at its office referred to in SECTION 11.5 (or at such Loan; providedother location as the Agent may designate) an amount, that if in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due have made such amounts available to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptionsAgent as provided hereinabove, the Lenders shall Agent will make the aggregate of such Loan subject amounts available to the terms and conditions for Loans otherwise set forth Swingline Lender in like funds as received by the Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement as soon as they are reasonably able to do so.the
Appears in 2 contracts
Sources: Credit Agreement (Eclipsys Corp), Credit Agreement (Eclipsys Corp)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Each Borrowing shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to be made upon the Borrower) an ’s irrevocable notice (which may be in the form of a written Loan Notice, appropriately completed and signed by the Collateral Manager on behalf a Responsible Officer of the Borrower) by electronic mail or facsimile transmission substantially to the Administrative Agent, which must be given not later than 11:00 a.m. (x) on the Effective Date in the form case of Annex B hereto the Term A Borrowing, (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three y) at least ten (310) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise (or such shorter period as may be agreed to by the LendersAdministrative Agent in its sole discretion) in advance of the requested date of such Borrowing in the case of the Term B-1 Borrowing or (z) at least fifteen (15) Business Days (or such shorter period as may be agreed to by the Administrative Agent in its sole discretion) in advance of the requested date of such Borrowing (other than the Term A Borrowing and the Term B-1 Borrowing). Each Loan Notice shall specify (i) the requested date of such Borrowing (which shall be a Business Day), each Loan (ii) the applicable Facility under which the Borrower is requesting such Borrowing and (iii) the principal amount of Loans to be borrowed. The Borrowing of Term A Loans shall be in a minimum an aggregate principal amount of $500,000 and 30,000,000. The Borrowing of Term B-1 Loans shall be in an aggregate principal amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified $5,000,000. The Borrowing of Term B-2 Loans shall be in the Approval Request) minus (ii) the balance (if any) an aggregate principal amount of $5,000,000. The Borrowing of Term B-3 Loans shall be in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist an aggregate principal amount of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts$5,000,000. Each Lender at its option may make any Loan or portion Borrowing of Term C Loans shall be in an aggregate principal amount of $2,500,000.
(b) Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestFacility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Loan, and Facility of the Lenders applicable Loans. Each Appropriate Lender shall use commercially reasonable efforts make the amount of its Loan available to make such Loan the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the proposed funding date Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.03 and Section 5.04 (and, if such Borrowing is the Expedited Borrowing Request subject initial Borrowing, Section 5.01 and Section 5.02), the Administrative Agent shall make all funds so received available to the terms and conditions for borrowings otherwise set forth Borrower in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders Administrative Agent by wire transfer of such funds in connection accordance with making such Loan on such proposed funding date on instructions provided to (and acceptable to) the date any interest is due under such Loan; provided, that if Administrative Agent by the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 2 contracts
Sources: Credit Agreement (Establishment Labs Holdings Inc.), Credit Agreement (Establishment Labs Holdings Inc.)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Each Borrowing shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to be made upon the Borrower) an ’s irrevocable notice (which may be in the form of a written Loan Notice, appropriately completed and signed by the Collateral Manager on behalf a Responsible Financial Officer of the Borrower) by electronic mail or facsimile transmission substantially in to the form of Annex B hereto (together with any attachments required in connection therewithAdministrative Agent, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event which must be given not later than 5:00 p.m. New York City time 11:00 a.m. at least three (3) Business Days prior to in advance of the proposed requested date of the Loanapplicable Borrowing (or such period of fewer than three (3) Business Days as the Administrative Agent shall agree in its sole discretion). Each Loan Notice shall specify (i) the requested date of the Borrowing (which shall be a Business Day) and (ii) the principal amount of Loans to be borrowed. For the avoidance of doubt, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount the Final Funding Amount.
(not less than zerob) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestFacility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Facility of the applicable Loans. Each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.03 (and, if such Borrowing is the initial Borrowing, Section 5.02), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such Loan, funds in accordance with instructions provided to (and acceptable to) the Administrative Agent by the Borrower.
(c) The Administrative Agent shall promptly notify the Borrower and the Lenders shall use commercially reasonable efforts to make such upon determining the interest rate for each Borrowing of Term SOFR Loans after its receipt of the relevant Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such LoanNotice; provided, however, that if the failure of the Administrative Agent to provide the Borrower or the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due with any such notice shall neither affect any obligations of the Borrower or the Lenders hereunder nor result in any liability on the part of the Administrative Agent to the occurrence of a force majeure, Borrower or any other unexpected Lender. Each such determination shall, absent manifest error, be conclusive and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sobinding on all parties hereto.
Appears in 2 contracts
Sources: Credit Agreement (Societal CDMO, Inc.), Credit Agreement (Societal CDMO, Inc.)
Borrowings. If(i) Borrowings may be made once a week and will be disbursed on Thursday, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for unless Thursday is not a Business Day in which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for case such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, Borrowing will be disbursed on the third next day which is a Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) Day. Each Borrowing shall be made by an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially written request in the form of Annex B hereto Exhibit A (together with any attachments required in connection therewitheach, a “Borrowing RequestNotice of Borrowing”), signed by a Responsible Officer delivered to the Administrative Agent. The Such notice must be received by Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 2:00 p.m. (New York City time three time) on the Monday (3or, if such Monday is not a Business Day, on the immediately preceding Business Day) Business Days prior to the proposed date requested Borrowing Date with respect to each Advance (i) specifying (A) the amount of such Borrowing, and (B) the requested Borrowing Date, which shall be a Business Day and shall be a Thursday (or, if Thursday is not a Business Day, the next succeeding Business Day) and (ii) including a copy of the LoanBorrowing Base Certificate which includes a detailed calculation of the Borrowing Base pro forma for such Borrowing as of such requested Borrowing Date. The disbursement of Advances will be funded (i) in the event the proceeds of such Advance will be applied to the purchase or origination of an Eligible Collateral Loan on such date, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to as directed by the LendersBorrower in writing and otherwise in accordance with Section 2.02(b) as if such funds were being withdrawn from the Pre-Funding Account, each Loan or (ii) otherwise, directly into the Pre-Funding Account, subject to withdrawal as expressly permitted hereunder. Submission of a request for an Advance hereunder shall obligate Borrower to pay interest on such Advance in accordance with this Agreement from the date the proceeds of such Advance are deposited into the Pre-Funding Account. Each Borrowing shall be in a minimum principal amount of $500,000 and shall be or an integral multiple of $100,000 in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus excess thereof.
(ii) the balance (if any) in the Trust Account. To the extent that more than one The Administrative Agent shall notify each Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate receipt of such Notice of Borrowing and shall advise each applicable Lender to make such Loan of the details thereof and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of the amounts of such Lender. Upon satisfaction ’s Advance to be made as part of the conditions to borrowing set forth requested Borrowing.
(iii) Each Lender shall, not later than 3:00 p.m. on each Borrowing Date in this Section 2 and in Section 7respect of Advances, the Lenders shall advance make its Percentage of the applicable principal amount Borrowing on each Borrowing Date by wire transfer of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans immediately available funds to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soPre-Funding Account.
Appears in 2 contracts
Sources: Credit and Security Agreement (Saratoga Investment Corp.), Credit and Security Agreement (Saratoga Investment Corp.)
Borrowings. If(a) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Loans, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved shall be made pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase1.6), the Collateral Manager Borrowers shall request a Loan for such purpose by, give the Agent written notice no later than noon, 1:00 p.m. (New York City time, ) on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time is three (3) Business Days prior to the proposed requested Borrowing date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount case of each LIBOR Rate Loan (or on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and which is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second one Business Day prior to the proposed requested Borrowing date in the case of the funding of a Loan (an “Expedited Borrowing Request”each Base Rate Loan). Each such Notice of Borrowing shall be irrevocable (except as expressly provided in Section 1.5(d) below) and shall specify:
(i) the requested Borrowing date, which shall be a Business Day;
(ii) whether the Borrowing is to consist of LIBOR Rate Loans or Base Rate Loans; and
(iii) if the Borrowing is to be LIBOR Rate Loans, the Interest Period applicable to such Loans;
(b) Upon receipt of an Expedited Borrowing Requesta Notice of Borrowing, the Administrative Agent shall will promptly notify the Lenders each Lender of such LoanNotice of Borrowing and of the amount of such Lender’s Commitment Percentage of the Borrowing. Each Lender will make available to the Agent an amount in Dollars and in immediately available funds, and equal to the Lenders shall use commercially reasonable efforts to make amount of such Loan Lender’s Commitment Percentage of the Borrowing, not later than 10:00 a.m. on the proposed funding date set forth in requested Borrowing date.
(c) The proceeds of each requested Borrowing after the Expedited Borrowing Request subject Closing Date will be made available to the terms and conditions for borrowings otherwise set forth Borrower by the Agent by wire transfer of such amount to the Borrower pursuant to the wire transfer instructions specified on the signature page hereto (or as directed by the Borrower in written directions from the Borrower to the Agent).
(d) Subject to the provisions of Section 7.4, each Notice of Borrowing may state that such notice is conditioned upon the effectiveness of other transactions permitted under this Agreement, except that in which case such Notice of Borrowing may be revoked by the Borrower shall pay (by written notice to the Lenders any losses, costs Administrative Agent) on or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due prior to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sospecified Borrowing date.
Appears in 2 contracts
Sources: Credit Agreement (Charah Solutions, Inc.), Credit Agreement (Charah Solutions, Inc.)
Borrowings. If(a) The Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan), provided that all Loans comprising the same Borrowing -------- shall, unless otherwise specifically provided herein, be of the same Type.
(b) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase2.11), the Collateral Manager shall request a Loan for such purpose by, no Borrower will give the Agent written notice not later than noon11:00 a.m., New York City Charlotte time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the -------- ------- Borrowing of any Loans to be made on the Closing Date may, at the discretion of the Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to contrary contained herein:
(i) the Purchase Price aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, if less, in the amount of the Assetaggregate Unutilized Commitments), together with any purchased accrued interest with respect thereto (as specified and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in the Approval Request) minus excess thereof;
(ii) if the balance Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if anythe Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Agent at its office referred to in Section 11.5 (or at such other location as the Trust AccountAgent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan to be made by such Lender. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Borrower in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 2.3(a) and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) like funds as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred received by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soAgent.
Appears in 2 contracts
Sources: Credit Agreement (Markel Holdings Inc), Credit Agreement (Markel Corp)
Borrowings. IfThe Borrower will not and will not permit any Subsidiary to create, prior assume or suffer to exist any unsecured or secured Indebtedness of any kind or any reimbursement obligation or other similar liabilities with respect to letters of credit issued for the Borrower’s or any Subsidiary’s account (other than non-recourse letters of credit or surety bonds issued as credit enhancement); provided, that this Section 8.04 shall not apply to the Conversion Datefollowing (collectively, the Collateral Manager wishes to purchase an Asset on behalf “Permitted Debt”):
(a) any Loans obtained hereunder;
(b) any secured Indebtedness of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds or of any Subsidiary created in the Trust Account course of purchasing or developing real estate or financing construction or other improvements thereon or purchasing furniture, fixtures or other equipment therefor or any other related Indebtedness of the Borrower or of any Subsidiary or any refinancings thereof, provided, that neither the Borrower nor any Subsidiary (other than a Subsidiary whose sole assets consist of contiguous parcels of land which are insufficient to provide for being purchased or developed with such purchasefinancing, the Collateral Manager shall request a Loan for such purpose byimprovements, no later than noonif any, New York City timethereon, on the third Business Day preceding the proposed date of such Loanfurniture, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required fixtures and other equipment used in connection therewith, receivables arising from tenants in connection therewith and the proceeds of such receivables and other property directly obtained from the ownership of such assets) shall have any personal liability for such Indebtedness (except for Indebtedness permitted in Section 8.07(e)), the creditors’ recourse being solely to the property being pledged as collateral for such Indebtedness and the income therefrom;
(c) except as provided in Section 8.04(d) hereof, Indebtedness under any Hedge Agreement relating to Indebtedness otherwise permitted under this Section 8.04, provided, that, any Hedge Agreement proposed to be entered into or guaranteed by the Borrower, FCCC or any other Subsidiary of the Borrower (other than a “Borrowing Request”SPE Subsidiary). The Administrative , along with all Hedge Agreements entered into or guaranteed by the Parent, in each case with a Person that is not a Bank, that results in a Measured Credit Risk for all such Hedge Agreements entered into with Persons other than a Bank, in excess of $33,500,000, shall require the prior written consent of the Required Banks (such written consent to be delivered by each consenting Bank to the Agent shall notify, as soon as reasonably practical but in no event later not more than 5:00 p.m. New York City time three (3) Business Days prior after the request for such consent has been delivered by the Borrower to the proposed date Agent, provided, that, each Bank that does not deliver such written consent within such three (3) Business Day period shall be deemed to have denied the request for such Hedge Agreement);
(d) Indebtedness of any of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to Borrower’s SPE Subsidiaries under (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus Hedge Agreements or (ii) Total Rate of Return Swaps relating to Indebtedness otherwise permitted under this Section 8.04, in all cases under (i) and (ii), that are recourse solely to such SPE Subsidiary;
(e) Indebtedness owed by a Subsidiary or the balance Borrower as permitted by Section 8.06(b) hereof;
(if anyf) in the Trust Account. To any guarantee or indemnity permitted by Section 8.07 hereof to the extent that more than one Lender is a party hereto, each Loan shall consist such guarantee or indemnity constitutes Indebtedness;
(g) Indebtedness of loans made by the Lenders ratably FCCC in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion favor of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen eventnon-affiliated third parties, including, without limitation, market disruptionsTotal Rate of Return Swaps, up to a maximum principal amount outstanding at any time of $200,000,000, to be used solely for the Lenders shall make such Loan purposes of (i) originating loans to non-affiliated third parties (subject to the terms and conditions for Loans otherwise limitations set forth in this Agreement Section 8.06(e)) and Affiliates of FCCC, (ii) acquiring loans, promissory notes and bonds issued by non-affiliated third parties (subject to the limitations set forth in Section 8.06(e)) and (iii) entering into Total Rate of Return Swaps;
(h) Indebtedness of any Subsidiary of the Borrower to pay the relevant seller the Consideration required in connection with a Multi-Asset Acquisition by such Subsidiary, so long as soon such Indebtedness (i) along with all other Consideration paid (and/or assumed) in connection with such Multi-Asset Acquisition (or series of related Multi-Asset Acquisitions), does not exceed $200,000,000 and (ii) along with the total Consideration paid (and/or assumed) by all Subsidiaries in connection with Multi-Asset Acquisitions, does not exceed $800,000,000; and
(i) Indebtedness assumed by a Subsidiary in connection with a Multi-Asset Acquisition, so long as they are reasonably able to do sosuch Indebtedness (i) existed at the time of such Multi-Asset Acquisition, (ii) was not incurred in contemplation of such Multi-Asset Acquisition, (iii) along with all other Consideration paid (and/or assumed) by such Subsidiary in connection with such Multi-Asset Acquisition (or series of Multi-Asset Acquisitions), does not exceed $200,000,000 and (iv) along with the total Consideration paid (and/or assumed) by all Subsidiaries in connection with Multi-Asset Acquisitions, does not exceed $800,000,000.
Appears in 2 contracts
Sources: Credit Agreement (Forest City Enterprises Inc), Credit Agreement (Forest City Enterprises Inc)
Borrowings. If(a) The Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for which and subject to the Approval Request has been approved pursuant terms and conditions of this Agreement, be either (i) Base Rate Loans or (ii) LIBOR Loans (each, a “Type” of Loan); provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no Borrowing of LIBOR Loans may be made at any time prior to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding after the proposed date Closing Date.
(b) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), unless such Loannotice requirement is shortened by the Administrative Agent, providing to the Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 12:00 p.m. New York City time three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 12:00 p.m. on the proposed same Business Day as each Borrowing to be comprised of Base Rate Loans. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the Loan“Borrowing Date”), the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan which shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal Business Day. Notwithstanding anything to the contrary contained herein:
(i) the Purchase Price aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, in each case if less than the minimum amount, in the amount of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus aggregate Unutilized Commitments);
(ii) if the balance Borrower shall have failed to designate the Type of Loans comprising a Borrowing, then the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if anythe Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one (1) month;
(c) Not later than 2:00 p.m. on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the Loan or Loans to be made by such Lender. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans such Lenders have made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request amounts available to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestas provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject amounts available to the terms Borrower in accordance with Section 2.3(a) and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soAdministrative Agent.
Appears in 2 contracts
Sources: Credit Agreement (Selective Insurance Group Inc), Credit Agreement (Selective Insurance Group Inc)
Borrowings. If(a) The Tranche A Term Loans, the Tranche B Term Loans and the Revolving Loans (each, a "Class" of Loan) shall, at the option of the Borrower and subject to the terms
(i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) notwithstanding any other provision of this Agreement, the Term Loans and any Revolving Loans made on the Closing Date or on the Acquisition Closing Date shall be made initially as Base Rate Loans, and (iii) notwithstanding any other provision of this Agreement, no LIBOR Loans having an Interest Period of longer than one month may be borrowed at any time prior to the Conversion Dateearlier of the 90th day after the Acquisition Closing Date and the date upon which the Agent determines in its sole discretion, and notifies the Borrower, that the primary syndication of the Facilities has been completed (the earlier of such dates, the Collateral Manager wishes "Syndication Completion Date"). Nothing in this Section 2.2(a) shall be construed to purchase an Asset prevent the Borrower from obtaining more than one Borrowing on behalf a single day.
(b) In order to make a Borrowing of the Borrower for Term Loans (other than Borrowings involving continuations or conversions of outstanding Term Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b2.11), the Borrower hereby requests (i) on the Closing Date, a Borrowing of Tranche A-1 Term Loans in an amount equal to Twenty Million Dollars ($20,000,000), and (ii) beginning on the Acquisition Closing Date, a Borrowing of Tranche A-2 Term Loans in the aggregate amount of Ten Million Dollars ($10,000,000) and funds a Borrowing of Tranche B Term Loans in an amount equal to (x) the Trust Account are insufficient Total Tranche B Commitments less (y) the amount of the aggregate Tranche B Guaranty Exposure on the Acquisition Closing Date (after issuance of the Loan Notes Guaranty).
(c) In order to provide for such purchasemake a Borrowing of Revolving Loans (other than Borrowings involving continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to Section 2.11), the Collateral Manager shall request a Loan for such purpose by, no Borrower will give the Agent written notice not later than noon11:00 a.m., New York City timeCharlotte Time, the Applicable Number of Business Days prior to each such Borrowing; provided, however, that a request for a Borrowing of any Revolving Loans to be made on the third Business Day preceding Closing Date or the proposed date Acquisition Closing Date may, at the discretion of the Agent, be given later than the times specified hereinabove. Each such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may each, a "Notice of Revolving Borrowing") shall be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially irrevocable, shall be given in the form of Annex Exhibit B-1, including a duly completed Revolving Commitment Worksheet attached thereto, and shall specify (v) the amount of the Total Unutilized Revolving Credit Commitment immediately before giving effect to the requested Borrowing, (w) the aggregate principal amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (x) the Applicable Currency in which such Loans shall be denominated, (y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (z) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Revolving Borrowing, the Agent will promptly notify each Revolving Lender of the proposed Borrowing and the contents of the Notice of Revolving Borrowing.
(d) If, on the Acquisition Closing Date, the amount of Tranche B hereto Term Loans made is less than the full amount of the Total Tranche B Commitments because of the issuance of the Loan Notes Guaranty, the Borrower may, subject to Section 2.1(b), at any time until one (together 1) day immediately preceding the Tranche B Maturity Date, make Borrowings of Tranche B Term Loans in order to satisfy Beechwood's obligations under the Loan Notes. Further, if, after the completion of all purchases of Archer shares under ▇▇▇ ▇▇nder Offer and the Statutory Merger Proceedings, if any, the Fixed Guaranty Principal Exposure is less than (x) the Stated Amount of the Loan Notes Guaranty upon its issuance, and is less than (y) (pound)12,850,000, then the Borrower shall be entitled to make an additional Borrowing of Tranche B Term Loans up to an amount equal to (pound)12,850,000 minus the Fixed Guaranty Principal Exposure. In order to make a Borrowing of Tranche B Term Loans to satisfy Loan Notes obligations, or to make an additional Borrowing in accordance with any attachments required in connection therewiththe foregoing sentence, a “Borrowing Request”). The Administrative the Borrower will give the Agent shall notify, as soon as reasonably practical but in no event written notice not later than 5:00 p.m. New York City time three (3) Business 11:00 a.m., Charlotte time, the Applicable Number of Days prior to each such Borrowing. Each such notice (each, a "Notice of Tranche B Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-4, and shall specify (x) the aggregate principal amount and initial Type of the Tranche B Term Loans to be made pursuant to such Borrowing, (y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (z) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Tranche B Borrowing, the Agent will promptly notify each Tranche B Lender of the proposed date Borrowing and the contents of the Loan, Notice of Tranche B Borrowing.
(e) Notwithstanding anything to the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to contrary contained herein:
(i) the Purchase Price aggregate principal amount of Borrowings of Tranche A Term Loans shall be in the amount of the Assetaggregate Tranche A Commitments, together with any purchased accrued interest with respect thereto (as specified and the aggregate principal amount of the Borrowings of Tranche B Term Loans shall be in the Approval Request) minus amount of the Total Tranche B Commitments less the amount of the aggregate Tranche B Guaranty Exposure of all Lenders;
(ii) the balance aggregate principal amount of each Borrowing of Dollar Revolving Loans or Sterling Revolving Loans that is comprised of Base Rate Loans shall not be less than $1,000,000 or (pound)1,000,000, respectively, or, if any) greater, an integral multiple of $500,000 or (pound)500,000, respectively, in excess thereof (or, if less, in the Trust Accountamount of the Total Unutilized Revolving Credit Commitment);
(iii) the aggregate principal amount of each Borrowing of Dollar Revolving Loans or Pounds Sterling Revolving Loans that is comprised of LIBOR Loans shall not be less than $3,000,000 or (pound)3,000,000, respectively, or, if greater, an integral multiple of $1,000,000 or (pound)1,000,000, respectively, i any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(f) Not later than 11:00 a.m., Local Time, on the requested Borrowing Date, each Lender will make available to the Agent at its Payment Office an amount, in the Applicable Currency and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent that more than one Lender is a party heretothe relevant Lenders have made such amounts available to the Agent as provided hereinabove, each Loan shall consist the Agent will make the aggregate of loans made by such amounts available to the Lenders ratably Borrower in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 2.3(a) and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) like funds as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred received by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soAgent.
Appears in 2 contracts
Sources: Credit Agreement (Chartwell Re Corp), Credit Agreement (Chartwell Re Holdings Corp)
Borrowings. If(a) Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable notice to Administrative Agent, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date and the Credit Extensions on the Delayed Draw Funding Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of LIBOR RateSOFR Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower Representative wishes to request LIBOR Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by Administrative Agent not later than 12:00 p.m., five (5) Business Days prior to the requested date of such Borrowing, whereupon Administrative Agent shall give prompt notice to the applicable Lenders each time it receives a Borrowing Request. Unless otherwise agreed of such request and determine whether the requested Interest Period is acceptable to all of them, thereafter Administrative Agent shall notify the Borrower Representative (which notice may be by telephone) whether or not the requested Interest Period has been consented to by such ▇▇▇▇▇▇▇. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR RateSOFR Loan shall, unless Borrower Representative is notified pursuant to Section 2.17 or Section 2.27 that LIBOR RateSOFR Loans are not available, be irrevocable on and after the Lendersrelated Interest Rate Determination Date, and Borrowers shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Loan Lender of the proposed borrowing. Each Borrowing of LIBOR RateSOFR Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction requested date of the conditions to borrowing set forth in this Section 2 and in Section 7Borrowing (which shall be a Business Day), (iii) the Lenders shall advance the applicable principal amount of each Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of LIBOR RateSOFR Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower Representative fails to specify between a Base Rate Loan on the date specified or a LIBOR RateSOFR Loan in the related Borrowing Request and applicable Funding Notice, then the proceeds thereof applicable Term Loans or Revolving Loans shall be paid into the Trust Account or otherwise at the direction made as LIBOR RateSOFR Loans with an Interest Period of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soone month.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. If(a) Each Borrowing, prior to other than the Conversion Borrowing on the Effective Date, shall be made upon the Collateral Manager wishes to purchase an Asset on behalf of irrevocable notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (Agent, which may be signed given by telephone (provided that such telephonic notice complies with the Collateral Manager on behalf information requirements of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”Loan Notice attached hereto). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to Each such notice must be received by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent not later than 12:00 noon on the first or second Business Day prior to the proposed date applicable Increment Date. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the Administrative Agent of a written Loan Notice by 12:00 noon on the applicable Increment Date, appropriately completed and signed by a Responsible Officer of the funding Borrower. Each Loan Notice (whether telephonic or written) shall specify the applicable Increment Date and then amount of the Incremental Advance proposed to be borrowed.
(b) Following receipt of a Loan telephonic notice of intent to make a Borrowing complying with clause (an “Expedited Borrowing Request”a). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify each Lender of the Lenders amount of such Loanits Applicable Percentage of the applicable Loans. Unless the Administrative Agent has given the Borrower the notice described in clause (c) of this Section 2.02, and each Lender shall make the Lenders shall use commercially reasonable efforts amount of its Loan available to make such Loan the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the proposed funding date Increment Date specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the Expedited Borrowing Request subject initial Loan, Section 5.01), the Administrative Agent shall make all funds so received available to the terms Borrower in like funds as received by the Administrative Agent by wire transfer of such funds, in accordance with instructions provided to (and conditions for borrowings otherwise reasonably acceptable to) the Administrative Agent by the Borrower.
(c) Not later than 12:00 noon three Business Days prior to the applicable Increment Date, the Administrative Agent shall provide irrevocable notice to the Borrower of a determination by the Lenders that the condition set forth in this Agreement, except clause (g) of Section 5.02 has not been satisfied and that the Borrower shall pay Lenders have determined not to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan make applicable Incremental Advance on such proposed funding date on Increment Date.
(d) For the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence avoidance of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptionsdoubt, the Lenders following milestones shall make such apply with respect to each Increment Date: Notice of determination not to fund Incremental Advance 12:00 noon Monday, March 10 12:00 noon Wednesday, March 19 12:00 noon Wednesday, April 16 Telephonic notice of Borrowing on Increment Date 12:00 noon Wednesday, March 12 12:00 noon Friday, March 21 12:00 noon Friday, April 18 Loan subject Notice 12:00 noon Thursday, March 13 12:00 noon Monday, March 24 12:00 noon Monday, April 21 Funds made available to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.Administrative Agent 1:00 p.m. Thursday, March 13 1:00 p.m. Thursday, March 24 1:00 p.m. Thursday, April 21
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Borrowings. If(i) Each Revolving Credit Borrowing shall be made on notice given by the Company to the Administrative Agent not later than 1:00 p.m. (New York time) (i) one Business Day, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days, in the case of a Borrowing of Eurodollar Rate Loans, prior to the Conversion Datedate of the proposed Borrowing. Each such notice shall be in substantially the form of Exhibit C (Form of Notice of Borrowing) (a “Notice of Borrowing”), specifying (A) the date of such proposed Borrowing, (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans and (D) for each Eurodollar Rate Loan, the Collateral Manager wishes initial Interest Period or Periods thereof. Loans shall be made as Base Rate Loans unless, subject to purchase Section 2.14 (Special Provisions Governing Eurodollar Rate Loans), the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Notwithstanding anything to the contrary contained in Section 2.3(a) (Swing Loans), if any Notice of Borrowing requests a Revolving Credit Borrowing of Base Rate Loans, the Administrative Agent may make a Swing Loan available to the Company in an Asset on behalf aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the Borrower for which corresponding proposed Borrowing shall be reduced accordingly by the Approval Request has been approved principal amount of such Swing Loan. Each Revolving Credit Borrowing shall be in an aggregate amount of not less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof.
(ii) The Administrative Agent shall give to each Revolving Credit Lender prompt notice of the Administrative Agent’s receipt of a Notice of Borrowing with respect to Revolving Credit Borrowings and, if Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the applicable interest rate determined pursuant to Section 2(b2.14(a) and funds in the Trust Account are insufficient to provide for such purchase(Determination of Interest Rate). Each Lender shall, the Collateral Manager shall request a Loan for such purpose by, no later than noon, before 11:00 am. (New York City time, ) on the third Business Day preceding date of the proposed date of such LoanBorrowing, providing make available to the Administrative Agent at its address referred to in Section 11.8 (with a copy to the Borrower) an irrevocable notice Notices, Etc.), in immediately available funds, such Lender’s Ratable Portion of such proposed Borrowing. Upon fulfillment (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably due waiver in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower 11.1 (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.
Appears in 1 contract
Borrowings. IfThe Borrower will not and will not permit any Subsidiary to create, prior assume or suffer to exist any unsecured or secured Indebtedness of any kind or any reimbursement obligation or other similar liabilities with respect to letters of credit issued for the Borrower’s or any Subsidiary’s account (other than non-recourse letters of credit or surety bonds issued as credit enhancement); provided, that this Section 8.04 shall not apply to the Conversion Datefollowing (collectively, the Collateral Manager wishes to purchase an Asset on behalf “Permitted Debt”):
(a) any Loans obtained hereunder and Letters of Credit issued hereunder;
(b) any (i) secured Indebtedness of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds or of any Subsidiary created in the Trust Account course of purchasing or developing real estate or financing construction or other improvements thereon or purchasing furniture, fixtures or other equipment therefor or any other related Indebtedness of the Borrower or of any Subsidiary or any refinancings thereof, provided, that neither the Borrower nor any Subsidiary (other than a Subsidiary (an “SPE”) whose sole assets consist of contiguous parcels of land which are insufficient to provide for being purchased or developed with such purchasefinancing, the Collateral Manager shall request a Loan for such purpose byimprovements, no later than noonif any, New York City timethereon, on the third Business Day preceding the proposed date of such Loanfurniture, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required fixtures and other equipment used in connection therewith, receivables arising from tenants in connection therewith and the proceeds of such receivables and other property directly obtained from the ownership of such assets) shall have any personal liability for such Indebtedness (except for Indebtedness permitted in Section 8.07(e) hereof), the creditors’ recourse being solely to the property being pledged as collateral for such Indebtedness and the income therefrom and (ii) unsecured recourse Indebtedness of an SPE (and only such SPE) created in the course of purchasing or developing real estate or financing construction or other improvements thereon or purchasing furniture, fixtures or other equipment therefor or any other related Indebtedness of such SPE (and only such SPE) or any refinancings thereof;
(c) Indebtedness of the Borrower or of any Subsidiary (other than any SPE Subsidiary) under any Hedge Agreement relating to Indebtedness otherwise permitted under this Section 8.04, provided, that, any Hedge Agreement proposed to be entered into or guaranteed by the Borrower, FCCC or any other Subsidiary of the Borrower (other than a “Borrowing Request”SPE Subsidiary). The Administrative , along with all Hedge Agreements entered into or guaranteed by the Parent, in each case with a Person that is not a Bank, that results in a Measured Credit Risk for all such Hedge Agreements entered into with Persons other than a Bank, in excess of Thirty Three Million Five Hundred Thousand Dollars ($33,500,000), shall require the prior written consent of the Required Banks (such written consent to be delivered by each consenting Bank to the Agent shall notify, as soon as reasonably practical but in no event later not more than 5:00 p.m. New York City time three (3) Business Cleveland Banking Days prior after the request for such consent has been delivered by the Borrower to the proposed date of the LoanAgent, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lendersprovided, that, each Loan Bank that does not deliver such written consent within such three (3) Cleveland Banking Day period shall be in a minimum principal amount deemed to have denied the request for such Hedge Agreement);
(d) Indebtedness of $500,000 and shall be in an amount (not less than zero) equal to any SPE Subsidiary under (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus Hedge Agreements or (ii) Total Rate of Return Swaps relating to Indebtedness otherwise permitted under this Section 8.04, in all cases under the balance foregoing clauses (if anyi) in and (ii), that are recourse solely to such SPE Subsidiary;
(e) Indebtedness owed by a Subsidiary or the Trust Account. To Borrower as permitted by Section 8.06(b) hereof;
(f) any guarantee or indemnity permitted by Section 8.07 hereof to the extent that more than one Lender is a party hereto, each Loan shall consist such guarantee or indemnity constitutes Indebtedness;
(g) Indebtedness of loans made by the Lenders ratably FCCC and FCL in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion favor of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen eventnon-affiliated third parties, including, without limitation, market disruptionsTotal Rate of Return Swaps, up to a maximum principal amount outstanding at any time of Two Hundred Million Dollars ($200,000,000) in the Lenders shall make such Loan aggregate, to be used solely for the purposes of (i) originating loans to non-affiliated third parties (subject to the terms and conditions for Loans otherwise limitations set forth in Section 8.06(e) hereof) and Affiliates of FCCC and/or FCL, (ii) acquiring loans, promissory notes and bonds issued by non-affiliated third parties (subject to the limitations set forth in Section 8.06(e) hereof) and (iii) entering into Total Rate of Return Swaps;
(h) Indebtedness of any Subsidiary of the Borrower incurred to pay the relevant seller the Consideration required in connection with a Multi-Asset Acquisition by such Subsidiary, so long as such Indebtedness (i) along with all other Consideration paid (and/or assumed) in connection with such Multi-Asset Acquisition (or series of related Multi-Asset Acquisitions), does not exceed Two Hundred Million Dollars ($200,000,000) in an aggregate principal amount outstanding at any time and (ii) along with the total Consideration paid (and/or assumed) by all Subsidiaries in connection with Multi-Asset Acquisitions, does not exceed Eight Hundred Million Dollars ($800,000,000) in an aggregate principal amount outstanding at any time;
(i) Indebtedness assumed by a Subsidiary in connection with a Multi-Asset Acquisition, so long as such Indebtedness (i) existed at the time of such Multi-Asset Acquisition, (ii) was not incurred in contemplation of such Multi-Asset Acquisition, (iii) along with all other Consideration paid (and/or assumed) by such Subsidiary in connection with such Multi-Asset Acquisition (or series of Multi-Asset Acquisitions), does not exceed Two Hundred Million Dollars ($200,000,000) in an aggregate principal amount outstanding at any time and (iv) along with the total Consideration paid (and/or assumed) by all Subsidiaries in connection with Multi-Asset Acquisitions, does not exceed Eight Hundred Million Dollars ($800,000,000) in an aggregate principal amount outstanding at any time;
(j) Indebtedness of the Borrower, up to a maximum principal amount outstanding at any time of Five Million Dollars ($5,000,000), which is incurred in the ordinary course of business; provided that all Indebtedness incurred under Section 9.10(o) of the Guaranty shall be included, without duplication, in calculating whether the dollar limitation contained in this Agreement as soon as they clause (j) has been met; and
(k) leases required to be capitalized under Financial Accounting Standards Board Standard No. 13 in the aggregate amount for the Borrower and its Subsidiaries of Eighteen Million Dollars ($18,000,000); provided that (i) the foregoing dollar limitation shall not apply to any such capitalized lease, the obligations of which are reasonably able not recourse to do sothe Parent or the Borrower or any of its Subsidiaries (other than Barclays Event Center, LLC, a Delaware limited liability company) and which relates solely to the Atlantic Yards Arena project located in Brooklyn, New York and (ii) all Indebtedness incurred under Section 9.10(e) of the Guaranty shall be included, without duplication, in calculating whether the dollar limitation contained in this clause (k) has been met.
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Borrowings. If(a) Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable notice to Administrative Agent, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of LIBOR Rate Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower Representative wishes to request LIBOR Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by Administrative Agent not later than 12:00 p.m., five (5) Business Days prior to the requested date of such Borrowing, whereupon Administrative Agent shall give prompt notice to the applicable Lenders each time it receives a Borrowing Request. Unless otherwise agreed of such request and determine whether the requested Interest Period is acceptable to all of them, thereafter Administrative Agent shall notify the Borrower Representative (which notice may be by telephone) whether or not the requested Interest Period has been consented to by such Lenders. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall, unless Borrower Representative is notified pursuant to Section 2.17 that LIBOR Rate Loans are not available, be irrevocable on and after the Lendersrelated Interest Rate Determination Date, and Borrowers shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Loan Lender of the proposed borrowing. Each Borrowing of LIBOR Rate Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance requested date of the Borrowing (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if anyapplicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of LIBOR Rate Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Funding Notice, Administrative Agent shall promptly notify each Appropriate Lender in writing or by electronic communication of the amount of its Pro Rata Share of the applicable Term Loans or Revolving Loans. In the case of a Term Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to Administrative Agent in immediately available funds at the Administrative Agent’s Principal Office not later than 2:00 p.m. on the Business Day specified in the Trust Accountapplicable Funding Notice. To Upon satisfaction or waiver of the extent that more than one Lender applicable conditions precedent set forth in Section 3.02 (and, if such Borrowing is a party heretothe initial Credit Extension, each Loan Section 3.01), Administrative Agent shall consist make all funds so received available to the applicable Borrower(s) either by (i) crediting the account(s) of loans made the Borrower(s) on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds to an account designated by the Lenders ratably Borrower Representative in writing, in each case, in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan instructions provided to (and reasonably acceptable to) Administrative Agent by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Representative (or the Collateral Manager on its behalfsubject to Section 2.04(c)).
(c) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower Representative and the Lenders shall use commercially reasonable efforts (in writing or by electronic communication) of the interest rate applicable to any Interest Period for LIBOR Rate Loans upon determination of such interest rate.
(d) The failure of any Lender to make such the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the proposed funding date set forth in of such Borrowing, but no Lender shall be responsible for the Expedited Borrowing Request subject failure of any other Lender to make the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay Loan to the Lenders any losses, costs or expenses incurred be made by the Lenders in connection with making such Loan on such proposed funding date other Lender on the date of any interest is due under such Loan; providedBorrowing.
(e) Anything in this Section 2.02 to the contrary notwithstanding, that the Borrower Representative may not select Adjusted LIBOR Rate for any Borrowing if the obligation of the Appropriate Lenders are unable to make a Loan LIBOR Rate Loans shall then be suspended pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, Section 2.17(a) or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so2.17(b).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Each Borrowing shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to be made upon the Borrower) an ’s irrevocable notice (which may be in the form of a written Loan Notice, appropriately completed and signed by the Collateral Manager on behalf a Responsible Officer of the Borrower) by electronic mail or facsimile transmission substantially in to the form of Annex B hereto (together with any attachments required in connection therewithAdministrative Agent, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event which must be given not later than 5:00 p.m. New York City time three (3x) with respect to all Borrowings other than the Term A Borrowing, 11:00 a.m. at least fifteen (15) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise (or such shorter period as may be agreed to by the LendersAdministrative Agent in its sole discretion) in advance of the requested date of any such Borrowing and (y) with respect to the Term A Borrowing, each 9:00 a.m. at least two (2) Business Days (or such shorter period as may be agreed to by the Administrative Agent in its sole discretion) in advance of the requested date of such Term A Borrowing. Each Loan Notice shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the AssetBorrowing (which shall be a Business Day), together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance applicable Facility under which the Borrower is requesting a Borrowing and (if anyiii) in the Trust Accountprincipal amount of Loans to be borrowed. To For the extent that more than one Lender is a party heretoavoidance of doubt, each Loan the aggregate principal amount of (i) the Term A Borrowing shall consist of loans made by be $30,000,000, (ii) the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Term B Borrowing shall be $10,000,000 and (iii) the Term C Borrowing shall be $10,000,000.
(b) Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestFacility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Loan, and Facility of the Lenders applicable Loans. Each Appropriate Lender shall use commercially reasonable efforts make the amount of its Loan available to make such Loan the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the proposed funding date Business Day specified in the applicable Loan Notice. Upon satisfaction of the conditions set forth in Section 2.01 and Section 5.02 (and, if such Borrowing is the Expedited Borrowing Request subject initial Borrowing, Section 5.01), the Administrative Agent shall make all funds so received available to the terms and conditions for borrowings otherwise set forth Borrower in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders Administrative Agent by wire transfer of such funds in connection accordance with making such Loan on such proposed funding date on instructions provided to (and acceptable to) the date any interest is due under such Loan; provided, that if Administrative Agent by the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 1 contract
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the (i) The Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to give the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by and the Collateral Manager on behalf Agent notice of each request for a Borrowing, pursuant to a Borrowing Report, and in accordance with the Borrower) by electronic mail or facsimile transmission substantially in the form provisions of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”)Section 4.2 hereof. The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior promptly forward a copy of such Borrowing Report to each Managing Agent and each Managing Agent shall promptly forward to its Group Banks. On the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as Date specified in the Approval Request) minus Borrowing Report and subject to all other terms and conditions of this Agreement, each Issuer may, in its discretion (except that ▇▇▇▇▇▇ shall), make available to its Managing Agent at the office of its Managing Agent set forth in Section 14.1, in immediately available funds, its pro rata share of the Borrowing.
(ii) the balance (if any) in the Trust Account. To the extent that more an Issuer (other than one Lender is ▇▇▇▇▇▇) shall elect not to fund a party heretoBorrowing requested by the Borrower, each Loan shall consist related Group Bank agrees that it shall, on the Borrowing Date specified in the Borrowing Report and subject to all other terms and conditions of loans made by this Agreement, make available to its Managing Agent at the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction office of the conditions to borrowing Managing Agent set forth in this Section 2 14.1, in immediately available funds, an amount equal to the product of (x) such Bank’s Bank Commitment Percentage, multiplied by (y) the portion of such Borrowing that such Issuer or Issuers have elected not to fund.
(iii) After each Managing Agent’s receipt of funds pursuant to the preceding paragraph (i) or (ii) and in Section 7, the Lenders shall advance upon fulfillment of the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as conditions set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphArticle IV, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request each Managing Agent will make such funds available to the Administrative Agent on by crediting the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, Administrative Agent’s Account and the Administrative Agent shall promptly notify will make such funds available to the Lenders Borrower by crediting the Borrower’s operating account with a like amount of such Loan, and immediately available funds. So long as the Lenders shall use commercially reasonable efforts Borrower is otherwise entitled to make such Loan a specific Borrowing, Borrowing Reports that are received by the Administrative Agent and Collateral Agent by 3:30 p.m. (eastern time) and forwarded to each Managing Agent and its Group Banks by 4:30 p.m. (eastern time) on a Business Day will be funded on the proposed funding date set forth in next Business Day following receipt of the Expedited Borrowing Request subject Report.
(iv) Notwithstanding the foregoing, a Bank shall not be obligated to make Advances under this Section 2.3 at any time to the terms and conditions for borrowings otherwise set forth in this Agreement, except extent that the Borrower principal amount of all Advances made by such Bank would exceed such Bank’s Bank Commitment less the outstanding and unpaid principal amount of any loans or purchases made by such Bank under a Liquidity Agreement. In addition, notwithstanding the foregoing, ▇▇▇▇▇▇ shall pay not be obligated to make Advances under this Section 2.3(a)(iv) at any time to the Lenders extent that the principal amount of all Advances made by ▇▇▇▇▇▇ would exceed ▇▇▇▇▇▇’▇ Issuer Facility Amount less the outstanding and unpaid principal amount of any losses, costs loans or expenses incurred purchases made by the Lenders related Group Banks under the related Liquidity Agreement. Each Bank’s obligation shall be several, such that the failure of any Bank to make available to the Borrower any funds in connection with making such Loan on such proposed funding date any Borrowing shall not relieve any other Bank of its obligation, if any, hereunder to make funds available on the date of such Borrowing, but no Bank shall be responsible for the failure of any interest is due under such Loan; provided, that if the Lenders are unable other Bank to make funds available in connection with any Borrowing. No Bank that is a Loan pursuant member of one Group shall be obligated to an Expedited Borrowing Request due to the occurrence make funds available in respect of another Group of which it is not a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do somember.
Appears in 1 contract
Sources: Loan Agreement (Horton D R Inc /De/)
Borrowings. If, prior (i) Each request for borrowings hereunder shall be made by a Notice of Borrowing from the Borrower to the Conversion DateAgent, given not later than (A) 2:00 P.M. on the Collateral Manager wishes to purchase an Asset Business Day on behalf of the Borrower for which the Approval Request has been approved pursuant proposed borrowing is requested to Section 2(bbe made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, during normal business hours on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time that is three (3) Business Days prior to the proposed date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice of Borrowing shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or Eurodollar Rate Loans, and if appropriate, the Lenders each time it receives applicable Interest Period, (4) whether such Swing Loan will be a Borrowing Request. Unless otherwise agreed Base Rate Loan or LIBOR Index Loan (subject to Section 2.1(a)(ii)), (5) certification by the LendersBorrower that it has complied in all respects with Section 5.3, each all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder and (6) the account at which such requested funds should be made available. Each request for borrowing made in a Notice of Borrowing shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of $3,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than six (6) Eurodollar Loans shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $3,000,000 and integral multiples of $1,000,000 in excess thereof. Each Swing Loan shall be in a minimum principal amount of at least $500,000 100,000 and integral multiples of $100,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall be give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 3:00 P.M. on the Purchase Price date of the AssetAgent's receipt of notice from the Borrower) of each requested borrowing in a Notice of Borrowing by telecopy, together telex or cable (other than any Notice of Borrowing which will be funded by the Agent in accordance with any purchased accrued interest with respect thereto subsection (as specified in d)(ii) below). No later than 4:00 P.M. on the Approval Request) minus (ii) date on which a Revolving Loan borrowing is requested to be made pursuant to the balance (if any) in applicable Notice of Borrowing, each Lender will make available to the Trust Account. To Agent at the extent that more than one Lender is a party address of the Agent set forth on the signature pages hereto, each Loan shall consist in immediately available funds, its Revolving Credit Commitment Percentage of loans such borrowing requested to be made (unless such funding is to be made by the Lenders ratably Agent in accordance with their Individual subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender Maximum Funding Amounts. Each prior to the date of borrowing that such Lender at does not intend to make available to the Agent its option may make any Loan or portion of a the Revolving Loan by causing any domestic or foreign branch or Affiliate of borrowing to be made on such date, the Agent may assume that such Lender to will make such Loan amount available to the Agent as required above and may at any time cause any Loan the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 75.3 for such borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans Agent will make such funds available to the Borrower if at the account specified by the Borrower in such Notice of Borrowing.
(ii) If the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made available to the Agent by a Default Lender (such Lender being hereinafter referred to as a "Defaulting Lender") and the Agent has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of made such amount available to the Borrower, may deliver a Borrowing Request the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAgent's demand therefor, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall immediately (but in no event later than five Business Days after such demand) pay such corresponding amount to the Lenders any lossesAgent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, costs or expenses incurred (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Lenders in connection with making such Loan on such proposed funding date on Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 4.1, plus (B) in each case, an amount equal to any interest is due under reasonable costs (including reasonable legal expenses) and losses incurred as a result of the failure of such Loan; provided, that if Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Lenders are unable to make Borrower may have against any Lender as a Loan pursuant to an Expedited Borrowing Request due to the occurrence result of a force majeure, or any other unexpected and unforeseen eventdefault by such Lender hereunder, including, without limitation, market disruptionsthe right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the Borrower under clause (B) above on account of such Defaulting Lender's default.
(iii) The failure of any Lender to make the Revolving Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to be made by such other Lender on the date of any borrowing.
(iv) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on outstanding Revolving Loans which it has funded to the Agent from the date such Lender funded such Revolving Loan to, but excluding, the Lenders shall make date on which such Loan subject Lender is repaid with respect to such Revolving Loan.
(v) A request for a borrowing may not be made by telephone, unless no other means are available at the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sotime of such request.
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Borrowings. If(a) The Tranche B Term Loans, Revolving Loans and each Series of Incremental Term Loans shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans, provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type and Applicable Currency, (ii) Foreign Currency Revolving Loans shall be made and maintained as LIBOR Loans at all times, and (iii) no LIBOR Loans may be borrowed at any time prior to the Conversion Datethird (3rd) Business Day after the Closing Date (or, with respect to any Incremental Term Loans, the Collateral Manager wishes third (3rd) Business Day after the applicable Incremental Term Loan Effective Date). The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to purchase an Asset on behalf make a Borrowing (other than (w) Borrowings of the Borrower for Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and funds (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, the Applicable Number of Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of the Tranche B Term Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the Trust Account are insufficient form of Exhibit B-1 and shall specify (1) the applicable Borrower, (2) the aggregate principal amount, Class and initial Type of the Loans to provide for be made pursuant to such purchaseBorrowing, (3) in the case of a Borrowing of LIBOR Loans, the Collateral Manager initial Interest Period to be applicable thereto, (4) in the case of a Borrowing of Revolving Loans, the Applicable Currency, and (5) the requested Borrowing Date, which shall request be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of the Borrowing of Tranche B Term Loans shall be in the amount of the aggregate Tranche B Term Loan for Commitments, and the aggregate principal amount of any Borrowing of any Series of Incremental Term Loans shall be in the amount of the aggregate Incremental Term Loan Commitments applicable to such purpose bySeries of Incremental Term Loans;
(ii) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $500,000 or, no if greater, an integral multiple of $100,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Revolving Credit Commitments less the Aggregate Revolving Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof;
(iii) if the applicable Borrower shall have failed to designate the Type of Loans comprising a Borrowing, such Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans (unless such notice indicates that the Borrowing is to be comprised of Foreign Currency Revolving Loans, in which case such Borrower shall be deemed to have requested a Borrowing comprised of LIBOR Loans);
(iv) if the applicable Borrower shall have failed to designate the Applicable Currency with respect to a Borrowing of Revolving Loans, such Borrower shall be deemed to have requested (A) in the case of the Company, a Borrowing of Dollar Revolving Loans, and (B) in the case of any Foreign Borrower, a Borrowing of Foreign Currency Revolving Loans denominated in Euro; and
(v) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then such Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) In the case of each Borrowing of Dollar Loans, not later than noon1:00 p.m., New York City Charlotte time, on the third Business Day preceding requested Borrowing Date (which shall be the proposed Closing Date, in the case of the Tranche B Term Loans), each applicable Lender will make available to the Administrative Agent at the applicable Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Dollar Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Company in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. In the case of each Borrowing of Foreign Currency Revolving Loans, not later than 1:00 p.m., Local Time, on the requested Borrowing Date, each Revolving Credit Lender will make available to the Administrative Agent at the applicable Payment Office an amount, in the Applicable Currency and in immediately available funds, equal to the amount of the Foreign Currency Revolving Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan (other than borrowings pursuant to any loan sweep product or other cash management arrangement in effect between the Company and the Swingline Lender, which shall be effected as provided thereunder), the Company will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $200,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, providing the Administrative Agent will make such amount available to the Company in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Company to, cause a Borrowing of Dollar Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the Company), not later than 11:00 a.m., Charlotte time, one (1) Business Day prior to the Borrower) an irrevocable proposed Borrowing Date therefor, a notice (which may shall be signed deemed to be a Notice of Borrowing given by the Collateral Manager Company) requesting the Revolving Credit Lenders to make Dollar Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Dollar Revolving Loan to be made by such Lender. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Dollar Revolving Loans made as provided above (including a Dollar Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Dollar Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower) by electronic mail Company from the Swingline Lender in any bankruptcy, insolvency or facsimile transmission substantially similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the form manner contemplated by Section 2.15(b).
(f) If, as a result of Annex B hereto any bankruptcy, insolvency or similar proceeding with respect to the Company, Dollar Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Company as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with any attachments required in connection therewithaccrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, a “Borrowing Request”). The each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall notifybe entitled to recover such amount on demand from such Lender, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise thereafter at the direction Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of the Borrower (any payment by or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the BorrowerCompany in respect of a Swingline Loan, may deliver the Swingline Lender will pay to each Revolving Credit Lender that has acquired a Borrowing Request participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestcontrary, the Administrative Agent shall promptly notify obligation of each Revolving Credit Lender (other than the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender) to make such Loan on Dollar Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make Administrative Agent, the Company, any other Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Loan subject Borrowing of Dollar Revolving Loans to meet the terms and minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Each Borrowing shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to be made upon the Borrower) an ’s irrevocable notice (which may be in the form of a written Loan Notice, appropriately completed and signed by the Collateral Manager on behalf a Responsible Financial Officer of the Borrower) by electronic mail or facsimile transmission substantially in to the form of Annex B hereto (together with any attachments required in connection therewithAdministrative Agent, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event which must be given not later than 5:00 p.m. New York City time 11:00
a. m. at least three (3) Business Days prior to in advance of the proposed requested date of the Loanapplicable Borrowing (or such period of fewer than three (3) Business Days as the Administrative Agent shall agree in its sole discretion). Each Loan Notice shall specify (i) the requested date of the Borrowing (which shall be a Business Day) and (ii) the principal amount of Loans to be borrowed. For the avoidance of doubt, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount the Final Funding Amount.
(not less than zerob) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestFacility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Facility of the applicable Loans. Each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.03 (and, if such Borrowing is the initial Borrowing, Section 5.02), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent by wire transfer of such Loan, funds in accordance with instructions provided to (and acceptable to) the Administrative Agent by the Borrower.
(c) The Administrative Agent shall promptly notify the Borrower and the Lenders shall use commercially reasonable efforts to make such upon determining the interest rate for each Borrowing of Term SOFR Loans after its receipt of the relevant Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such LoanNotice; provided, however, that if the failure of the Administrative Agent to provide the Borrower or the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due with any such notice shall neither affect any obligations of the Borrower or the Lenders hereunder nor result in any liability on the part of the Administrative Agent to the occurrence of a force majeure, Borrower or any other unexpected Lender. Each such determination shall, absent manifest error, be conclusive and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sobinding on all parties hereto.
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Borrowings. If, prior (a) Each of the Term Loan and the Capital Expenditure Loans shall be made upon the delivery by the Borrower of an irrevocable Borrowing Request (or telephonic or email notice promptly confirmed by delivery of an irrevocable Borrowing Request) to the Conversion DateFacility Agent (which shall give to each Lender prompt notice thereof by facsimile transmission), the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, given no later than noon1:00 p.m., New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent at least four (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (34) Business Days prior to the proposed requested date of the any Capital Expenditure Loan Borrowing or Term Loan Borrowing; provided that if such Loan is to be made as an Alternate Base Rate Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan such notice shall be in a minimum principal amount of $500,000 and shall be in an amount so delivered no later than 1:00 p.m., New York City time, at least one (not less than zero1) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed requested date of any Capital Expenditure Loan Borrowing or Term Loan Borrowing. Each such Borrowing Request shall specify (i) whether the funding Borrower is requesting a Term Loan Borrowing or a Capital Expenditure Loan Borrowing, (ii) the requested date of such Borrowing (which shall be a Business Day), (iii) in the case of a Capital Expenditure Loan Borrowing or Term Loan Borrowing, whether the related Capital Expenditure Loan or Term Loan is to be made as an Alternate Base Rate Loan or a LIBO Rate Loan, (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestiv) if the related Loan is to be made as a LIBO Rate Loan, the Administrative Agent shall promptly notify initial Interest Period applicable to such Borrowing and (v) the Lenders aggregate principal amount of such LoanLoans to be borrowed (and, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions set forth herein, the principal amount to be borrowed from each Lender shall be its ratable share of such aggregate principal amount, based upon the respective Commitments of each of the Lenders at such time).
(b) The Term Loan shall be borrowed in a single Borrowing. There shall be no more than seven (7) different Interest Periods at any one time for borrowings otherwise the outstanding Term Loan. Borrowings of Capital Expenditure Loans shall be in minimum amounts of $5,000,000 and increments of $1,000,000; provided that there shall be no more than sixty (60) Capital Expenditure Loan Borrowings. There shall be no more than five (5) different Interest Periods at any one time for the outstanding Capital Expenditure Loans.
(c) In the case of each Borrowing, each Lender shall make the amount of the Loan to be made by it hereunder on the proposed date thereof by wire transfer of immediately available funds not later than 11:00 a.m., New York City time, to the account of the Facility Agent most recently designated by it for such purpose by notice to the Lenders. Upon satisfaction of the applicable conditions set forth in this AgreementSection 4.02 and Section 4.03, except that the Borrower Facility Agent shall pay make all funds so received available not later than 1:00 p.m., New York City time, by wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Lenders any losses, costs or expenses incurred Facility Agent by the Lenders in connection with making such Borrower.
(d) The failure of any Lender to make the Loan on such proposed funding date to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any interest is due under such Loan; provided, that if the Lenders are unable other Lender to make a the Loan pursuant to an Expedited Borrowing Request due to be made by such other Lender on the occurrence date of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrowing.
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Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Each Loan shall be in made as part of a minimum principal amount Borrowing consisting of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price Loans of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans same Type made by the Lenders ratably in accordance with their Individual respective Commitments. The failure of any Lender Maximum Funding Amountsto make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(b) Subject to Section 2.11, each Borrowing shall be comprised entirely of ABR Loans, Term SOFR Loans or Daily Simple SOFR Loans, in each case, as the Company may request in accordance herewith. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan (and in the case of an Affiliate, the provisions of Sections 2.11, 2.12, 2.13 and 2.14 shall apply to such Affiliate to the same extent as to such Lender); provided that any exercise of such option shall not affect the obligation of the Company to repay such Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Term SOFR Borrowing, and at the time that each ABR Borrowing or Daily Simple SOFR Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of the Borrowing Multiple and not less than the Borrowing Minimum; provided that (i) any Term SOFR Borrowing that results from a continuation of an outstanding Borrowing may be in an aggregate amount that is equal to such outstanding Borrowing and (ii) an ABR Borrowing or a Daily Simple SOFR Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Commitments. Borrowings of more than one Type may be outstanding at the same time; provided that there shall not at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate more than a total of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower 10 (or the Collateral Manager on its behalf) such greater number as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans may be agreed to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to by the Administrative Agent on the first or second Business Day prior to the proposed date Agent) Term SOFR Borrowings.
(d) Notwithstanding any other provision of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower Company shall pay not be entitled to the Lenders request, or to elect to convert or continue, any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that Term SOFR Borrowing if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to Interest Period requested with respect thereto would end after the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soMaturity Date.
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Sources: Credit Agreement (Intuit Inc.)
Borrowings. If(a) The Term Loans and Revolving Loans (each a "Class" of Loan) shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, (ii) the Loans made on the Closing Date shall be made initially as Base Rate, Tranche A Revolving Loans, and (iii) LIBOR Loans may be made, or Base Rate Loans may be converted into LIBOR Loans, on the date which is three (3) Business Days following the Approval Request has been approved Closing Date (so long as proper notice is given pursuant to Section 2(b2.2(b) and funds in the Trust Account are insufficient or Section 2.11(b)).
(b) In order to provide for such purchasemake a Borrowing (other than Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of the Term Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to contrary contained herein:
(i) the Purchase Price aggregate principal amount of the Asset, together with any purchased accrued interest with respect thereto (as specified Borrowing of Term Loans shall be in the Approval Request) minus amount of the aggregate Term Loan Commitments;
(ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable aggregate principal amount of each Loan Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(iii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the date specified requested Borrowing Date (which shall be the Note Redemption Closing Date, in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction case of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphTerm Loans), the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request each Lender will make available to the Administrative Agent on the first at its office referred to in Section 11.5 (or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, at such other location as the Administrative Agent shall promptly notify the Lenders of such Loanmay designate) an amount, in Dollars and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject immediately available funds, equal to the terms and conditions for borrowings otherwise set forth in this Agreement, except that amount of the Borrower shall pay Loan or Loans to the Lenders any losses, costs or expenses incurred be made by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.such
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Borrowings. If
(a) Each Borrowing, prior shall be made upon the Borrower’s irrevocable notice to the Conversion DateAdministrative Agent, the Collateral Manager wishes to purchase an Asset on behalf which may be given by (A) telephone or (B) a Notice of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing Borrowing; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent (with of a copy to the Borrower) an irrevocable notice (which may Notice of Borrowing. Each such Notice of Borrowing must be signed received by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 noon three (3) Business Days prior to the proposed requested date of the Loan, the Lenders each time it receives a any Borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and 5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Notice of Borrowing shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the AssetBorrowing (which shall be a Business Day), together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance Facility to which such Borrowing relates, (if anyiii) in the Trust Account. To proposed use of proceeds with respect to such Borrowing and (iv) the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall Advances to be paid into the Trust Account or otherwise at the direction of the Borrower borrowed.
(or the Collateral Manager on its behalfb) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding Following receipt of a Loan (an “Expedited Borrowing Request”). Upon receipt Notice of an Expedited Borrowing RequestBorrowing, the Administrative Agent shall promptly notify (and in any event, no later than 11:00 a.m. two (2) Business Days prior to the Lenders requested date of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date Borrowing set forth in the Expedited Borrowing Request subject applicable Notice of Borrowing) notify (which may be done electronically) each Lender of the amount of its pro rata share of the applicable Advances. In the case of a Borrowing, each Lender shall make the amount of its Advance available to the terms and Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 P.M. on the Business Day specified in the applicable Notice of Borrowing. Upon satisfaction of the applicable conditions for borrowings otherwise set forth in this AgreementSection 3.02 (and, except that if such Borrowing is made on the Closing Date, Section 3.01), the Administrative Agent shall make all funds so received available to the Borrower shall pay to the Lenders any losses, costs or expenses incurred in like funds as received by the Lenders Administrative Agent by wire transfer of such funds in connection accordance with making such Loan on such proposed funding date on instructions provided to (and reasonably acceptable to) the date any interest is due under such Loan; provided, that if Administrative Agent by the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 1 contract
Borrowings. If(a) Each Borrowing of the Committed Loans and the initial Borrowing of the Term Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by telephone. Each such notice must be received by the Administrative Agent not later than 11:00 a.m. Eastern time on the Business Day prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed requested date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf any Borrowing. Each Borrowing of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan Committed Loans shall be in a minimum principal amount of $500,000 and or a whole multiple of $100,000 in excess thereof. No more than one Borrowing of Committed Loans may occur during any calendar month, provided that the initial borrowing of the Committed Loans pursuant to the Committed Loan Notices to be delivered on the Closing Date shall be in an amount not count as the allowed Borrowing of the Committed Loans during that calendar month. Each Committed Loan Notice or Term Loan Notice, as applicable (not less than zero) equal to whether telephonic or written), shall specify (i) the Purchase Price requested date of the Asset, together with any purchased accrued interest with respect thereto Borrowing (as specified in the Approval Requestwhich shall be a Business Day) minus and (ii) the balance principal amount to be borrowed.
(if anyb) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Following receipt of a Committed Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth Notice (in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, which case the Administrative Agent shall promptly notify each Revolver Lender of the Lenders amount of such Loanits Revolver Applicable Percentage of the applicable Committed Loans) or Term Loan Notice, and upon satisfaction of the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date applicable conditions set forth in the Expedited Borrowing Request subject Section 4.02 (and, with respect to the terms initial Credit Extension, the Borrowing of Term Loans and Committed Loans on such date, satisfaction of the applicable conditions for borrowings otherwise set forth in this AgreementSection 4.01), except that each Lender shall make the amount of its Committed Loans or Term Loans, as the case may be, available to the Borrower shall pay in immediately available funds not later than 1:00 p.m. Eastern time on the Business Day specified in the applicable Committed Loan Notice or Term Loan Notice by wire transfer of such funds in accordance with instructions provided to the Lenders any losses, costs or expenses incurred (and reasonably acceptable to) such Lender by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 1 contract
Sources: Credit Agreement (Media General Inc)
Borrowings. If, prior to (a) The Borrower agrees that during the Conversion Date, period from the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, date hereof until 5:30 P.M. (New York City time) on May 28, on 1999, it will not give any Notice of Borrowing for Swingline Loans or Revolving Credit Loans in an amount in excess of its actual cash needs in the third Business Day preceding ordinary course of business (net of other sources of funds available or expected to be available to it, including previous Borrowings) during the proposed three-day period beginning with the related date of such LoanBorrowing, providing for amounts it actually intends to the Administrative Agent (pay and determined consistent with a copy to the Borrower's historical cash management practices (it being agreed that such practices may need to take into account any changes in funds availability made by the Vencor Companies' cash management banks as a result of Vencor's current financial condition), as certified in reasonable detail (including a breakdown by category of the expenses or other amounts to be paid during such periods) an irrevocable notice by the Borrower's Chief Financial Officer or Treasurer in a certificate accompanying such Notice of Borrowing, provided that:
(which i) if the amount so determined is less than $1,000,000, such Borrowing may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus 1,000,000;
(ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may Borrower will not make any Loan Borrowing for the purpose of making payment of any rent or portion of other sum payable to any Ventas Company under a Loan by causing any domestic or foreign branch or Affiliate of such Lender Master Lease Agreement except on the date a Vencor Company is actually going to make such Loan payment (as certified by the Borrower's Chief Financial Officer or Treasurer in the certificate accompanying the related Notice of Borrowing), and may at the requirement to make any time cause such payment shall be disregarded when determining the Borrower's actual cash needs on any Loan day prior to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of day;
(iii) the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal maximum amount of each Loan Swingline Borrowings and Revolving Credit Borrowings and Aggregate LC Exposure that may be outstanding during the Waiver Period may not exceed $55,000,000 (determined without including the Aggregate LC Exposure on account of Letters of Credit outstanding on the date specified in the related Borrowing Request of Waiver No. 1 (and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”extensions thereof). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan); provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.and
Appears in 1 contract
Sources: Waiver (Vencor Inc)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of (a) If the Borrower for desires to request a Borrowing under this Agreement it shall give the Agents a written notice in substantially the form set forth on Exhibit B hereto (each, a “Notice of Borrowing”), which Notice of Borrowing (including a Borrowing Calculation Statement) shall promptly be sent by the Approval Request has been approved pursuant Administrative Agent to Section 2(b) and funds in the Trust Account are insufficient to provide each applicable Lender for such purchase, the Collateral Manager shall request a Loan for such purpose by, no Borrowing not later than noon, 2:00 p.m. (New York City time, on the third ) at least one Business Day preceding prior to the proposed date day of the requested Borrowing. Each Notice of Borrowing shall be substantially in the form of Exhibit B hereto, and the Borrower shall attach a Borrowing Calculation Statement (which Borrowing Calculation Statement shall give pro forma effect to any Collateral Obligation being acquired with the proceeds of such LoanBorrowing on such date or the following Business Day), providing dated the date the request for the related Borrowing is being made, signed by an Authorized Officer of the Borrower and otherwise be appropriately completed (including an indication by the Borrower of the Class or Classes proposed to be funded). Proceeds of each Borrowing may only be used (a) for the acquisition and origination of Collateral Obligations during the Revolving Period (and after the Revolving Period only for the acquisition and origination of Collateral Obligations committed to during the Revolving Period, subject to Section 5.8) and (b) to fund Exposure Amounts. The proposed Borrowing Date specified in each Notice of Borrowing shall be a Business Day falling during the Commitment Period; The amount of the Borrowing requested in each Notice of Borrowing (the “Requested Amount”) shall be equal to at least $250,000 and integral multiples of $1,000 in excess thereof (or, if less, the aggregate Undrawn Commitments in respect of the Loans hereunder); provided that (a) such Requested Amount may not exceed the Advance Rate with respect to a Collateral Obligation to be acquired using the proceeds of such Borrowing (which, for avoidance of doubt, will be calculated on a per Collateral Obligation basis); and (b) such Requested Amount may not exceed a Lender’s Commitment and as to all Lenders, the Total Commitment at such time. Each Notice of Borrowing shall be revocable by the Borrower only if written notice of such revocation is given to the Lenders and the Administrative Agent (with a copy to the BorrowerCollateral Agent) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 2:00 p.m. (New York City time three (3time) on the date that is one Business Days prior to Day before the proposed date of the Loanrelated Borrowing. Notices of Borrowing shall otherwise be irrevocable.
(b) Each Lender shall, not later than 1:00 p.m. (New York City time) on each Borrowing Date in respect of the Lenders each time Loans to be funded by it receives hereunder, make its Percentage Share of the applicable Requested Amount available to the Borrower by disbursing such funds in Dollars to an account specified by the Borrower in the Notice of Borrowing.
(c) The failure of any Lender to fund any Loan on a Borrowing Request. Unless otherwise agreed Date hereunder shall not relieve any other Lender of any obligation hereunder to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make fund any Loan or portion on such date. Notwithstanding the foregoing and any other provision to the contrary contained herein, if any Lender shall have failed to fund its Percentage Share of a previously requested Loan by causing any domestic or foreign branch or Affiliate on the applicable date of Borrowing and the Borrower provides a new Notice of Borrowing as a result of such Lender failure to fund, then, in each such case, if necessary to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7Borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay be permitted a single additional Borrowing without regard to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed minimum funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise limit set forth in this Agreement as soon as they are reasonably able to do soherein.
Appears in 1 contract
Sources: Credit Agreement (AB Private Credit Investors Corp)
Borrowings. If(a) The Revolving Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(bSECTION 2.2(d), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to SECTION 2.2(e), and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to provide for such purchaseSECTION 2.11), the Collateral Manager shall request a Loan for such purpose by, no Borrower will give the Agent written notice not later than noon11:00 a.m., New York City Charlotte time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Initial Closing Date may, at the discretion of the Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT B-1 and shall specify (1) the aggregate principal amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if the aggregate Unutilized Commitments are less than $5,000,000, in the amount of the aggregate Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Agent at its office referred to in SECTION 11.5 (or at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Borrower in accordance with SECTION 2.3(b) and in like funds as received by the Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Borrower will give the Agent and the Swingline Lender written notice not later that 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan "Notice of Swingline Borrowing") shall be irrevocable, shall be given in a minimum the form of EXHIBIT B-2 and shall specify (i) the principal amount Execution of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Agent at its office referred to in SECTION 11.5 (if anyor at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Agent will make such amount available to the Borrower in accordance with their Individual SECTION 2.3(A) and in like funds as received by the Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Agent (if the Agent is different from the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Collateral ManagerBorrower), on behalf of the Borrowernot later than 11:00 a.m., may deliver a Borrowing Request to the Administrative Agent on the first or second Charlotte time, one (1) Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the "Refunded Swingline Loans") outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Agent at its office referred to in SECTION 11.5 (or at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Lenders have made such amounts available to the Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such Loanamounts available to the Swingline Lender in like funds as received by the Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender's ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and the Lenders such Refunded Swingline Loans deemed to be so repaid shall use commercially reasonable efforts no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject be repaid) to the terms and conditions for borrowings otherwise set forth in this Agreement, except that Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall pay to the Lenders any losses, costs or expenses incurred by be shared ratably among all the Lenders in connection the manner contemplated by SECTION 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with making respect to the Borrower, Revolving Loans are not made pursuant to subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Lender shall be Execution deemed to have purchased and hereby agrees to purchase, a participation in such Loan on such proposed funding date outstanding Swingline Loans in an amount equal to its ratable share (based on the date any proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest is due under thereon. Upon one (1) Business Day's prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Agent at its office referred to in SECTION 11.5 (or at such Loan; providedother location as the Agent may designate) an amount, that if in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders are unable have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Agent. In the event any such Lender fails to make available to the Agent the amount of such Lender's participation as provided in this subsection (f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Base Rate applicable to Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Loan Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender's ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to an Expedited Borrowing Request due subsection (e) above and each such Lender's obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to subsection (f) above shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make such Loan subject to Agent, the terms and conditions Borrower or any other Person for Loans otherwise set forth any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, or (iv) any breach of this Agreement as soon as they are reasonably able to do soby any party hereto.
Appears in 1 contract
Sources: Credit Agreement (St Joe Co)
Borrowings. If, prior (i) Each request for borrowings hereunder shall be made by a Notice of Borrowing and Payment from the Borrower to the Conversion DateAgent, given not later than (A) 2:00 P.M. on the Collateral Manager wishes to purchase an Asset Business Day on behalf of the Borrower for which the Approval Request has been approved pursuant proposed borrowing is requested to Section 2(bbe made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, during normal business hours on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time that is three (3) Business Days prior to the proposed date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice of Borrowing and Payment shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to Eurodollar Rate Loans, and if appropriate, the applicable Interest Period, (4) whether such Swing Loans will be Base Rate Loans or LIBOR Index Loans, (5) certification by the LendersBorrower that it has complied in all respects with Section 5.3, each all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder (including, without limitation, availability under the Borrowing Base) and (6) the account at which such requested funds should be made available. Each request for borrowing made in a Notice of Borrowing and Payment shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of $1,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than eight (8) Eurodollar Loans shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. Revolving Loans may be repaid and reborrowed in accordance with the provisions hereof. Each Swing Loan shall be in a minimum principal amount of at least $500,000 1,000,000 and integral multiples of $1,000,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall be give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 3:00 P.M. on the Purchase Price date of the AssetAgent’s receipt of notice from the Borrower) of each requested borrowing in a Notice of Borrowing and Payment by telecopy, together telex or cable (other than any Notice of Borrowing and Payment which will be funded by the Agent in accordance with any purchased accrued interest with respect thereto subsection (as specified in d)(ii) below). No later than 4:00 P.M. on the Approval Request) minus (ii) date on which a Revolving Loan borrowing is requested to be made pursuant to the balance (if any) in applicable Notice of Borrowing and Payment, each Lender will make available to the Trust Account. To Agent at the extent that more than one Lender is a party address of the Agent set forth on the signature pages hereto, each Loan shall consist in immediately available funds, its Revolving Credit Commitment Percentage of loans such borrowing requested to be made (unless such funding is to be made by the Lenders ratably Agent in accordance with their Individual subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender Maximum Funding Amounts. Each prior to the date of borrowing that such Lender at does not intend to make available to the Agent its option may make any Loan or portion of a the Revolving Loan by causing any domestic or foreign branch or Affiliate of borrowing to be made on such date, the Agent may assume that such Lender to will make such Loan amount available to the Agent as required above and may at any time cause any Loan the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 75.3 for such borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans Agent will make such funds available to the Borrower if at the account specified by the Borrower in such Notice of Borrowing and Payment.
(ii) If the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made available to the Agent by a Default Lender (such Lender being hereinafter referred to as a “Defaulting Lender”) and the Agent has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of made such amount available to the Borrower, may deliver a Borrowing Request the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAgent’s demand therefor, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall immediately (but in no event later than five Business Days after such demand) pay such corresponding amount to the Lenders any lossesAgent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, costs or expenses incurred (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Lenders in connection with making such Loan on such proposed funding date on Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 4.1, plus (B) in each case, an amount equal to any interest is due under reasonable costs (including reasonable legal expenses) and losses incurred as a result of the failure of such Loan; provided, that if Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Lenders are unable to make Borrower may have against any Lender as a Loan pursuant to an Expedited Borrowing Request due to the occurrence result of a force majeure, or any other unexpected and unforeseen eventdefault by such Lender hereunder, including, without limitation, market disruptionsthe right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the Borrower under clause (B) above on account of such Defaulting Lender’s default.
(iii) The failure of any Lender to make the Revolving Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to be made by such other Lender on the date of any borrowing.
(iv) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on outstanding Revolving Loans which it has funded to the Agent from the date such Lender funded such Revolving Loan to, but excluding, the Lenders shall make date on which such Loan subject Lender is repaid with respect to such Revolving Loan.
(v) A request for a borrowing may not be made by telephone, unless no other means are available at the time of such request.
(vi) Notwithstanding anything to the terms contrary contained elsewhere herein, and conditions whether or not a Default or Event of Default exists at the time, unless otherwise objected to by the Required Lenders in writing, the Agent may in its reasonable discretion require all Lenders to honor requests or deemed requests by the Borrower for Revolving Loans otherwise set forth at a time that an Overadvance exists or which would result in this Agreement an Overadvance and each Lender shall be obligated to continue to make its pro rata share of Revolving Loans, up to a maximum amount outstanding equal to its Revolving Credit Commitment, so long as soon such Overadvance is not known by the Agent to exceed $10,000,000 and so long as they are reasonably able to do sosuch Overadvance is not outstanding for more than ten (10) Business Days. No new Overadvance may be made at any time during which an existing Overadvance is outstanding.
Appears in 1 contract
Sources: Senior Secured Working Capital Credit Facility (Transmontaigne Inc)
Borrowings. If, prior Subject to the Conversion DateSection 4.3, the Collateral Manager wishes to purchase an Asset on behalf Borrower shall (acting solely at the direction of Sublessee) give the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchaseSecurity Trustee, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable Guaranteed Lender and Ex-Im Bank notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B Exhibit A hereto of each borrowing hereunder (together with any attachments required in connection therewith, a “Borrowing Request”the "NOTICE OF BORROWING"). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on On the date specified in for the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphborrowing hereunder, the Collateral ManagerGuaranteed Lender shall, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this AgreementAgreement and the other Operative Documents, except that make available to the Borrower shall pay the amount of the Loan to be made on such date in Dollars by depositing the Lenders any lossessame, costs in immediately available funds, in an account or expenses incurred accounts with ______________designated by the Lenders Borrower in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; Notice of Borrowing, provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due amount equal to the occurrence Supplemental Equipment Amount shall not be disbursed to the Borrower on the Delivery Date but rather shall be deposited in the account of the Security Trustee and be held by the Security Trustee for the account of the Borrower (and deposited in Permitted Investments) until the earlier of (i) receipt by the Security Trustee (copied to the Guaranteed Lender) of a force majeurecertificate authorizing disbursement issued by Ex-Im Bank in the form attached hereto as Exhibit D (a "CERTIFICATE AUTHORIZING DISBURSEMENT") to be issued no later than, the earlier of, forty-five (45) days after the Final Disbursement Date and _____ (_____) days prior to the first Loan Payment Date, or (ii) the date on which a prepayment is required under Section 2.4(d) hereof, and on such date the Security Trustee shall, in the case of (i) above, deposit the amount indicated in such Certificate Authorizing Disbursement in an account designated by the Borrower (at the direction of the Sublessee), apply any other unexpected remaining Supplemental Equipment Amount in accordance with the provisions of Section 2.4 hereof and unforeseen eventdisburse any remaining proceeds of such Permitted Investments in an account designated by the Borrower (at the discretion of the Sublessee) or, includingin the case of (ii) above, without limitation, market disruptions, the Lenders shall make such Loan subject apply (with notice to the terms Guaranteed Lender) the Supplemental Equipment Amount towards the prepayment due on such date in accordance with the provisions of Section 2.4 hereof by making such amount available to the Guaranteed Lender on such date and conditions for Loans otherwise set forth any proceeds of such Permitted Investments remaining after such prepayment shall be deposited in this Agreement as soon as they are reasonably able to do soan account designated by the Borrower.
Appears in 1 contract
Sources: Loan Agreement (Copa Holdings, S.A.)
Borrowings. If(a) The Term Loans and the Revolving Loans (each a ---------- "Class" of Loan) shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan), provided that (i) all Loans comprising the same -------- Borrowing shall, unless otherwise specifically provided herein, be of the same Type, (ii) the Loans (whether Revolving or Term Loans) made on the Closing Date shall be made initially as Base Rate Loans and (iii) LIBOR Loans may be made, or Base Rate Loans may be converted into LIBOR Loans, on the date which is three (3) Business Days following the Approval Request has been approved Closing Date (so long as proper notice is given pursuant to Section 2(b2.2(b) and funds or Section 2.11(b)).
(b) The Borrower hereby requests a Borrowing of Tranche A Term Loans on the Closing Date in an amount equal to the Trust Account are insufficient aggregate Tranche A Term Loan Commitments. In order to provide for such purchasemake a Borrowing of Tranche B Term Loans or Revolving Loans (other than Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 noon, Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and on the date of each Borrowing to be comprised of Base Rate Loans; provided, however, that -------- ------- requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to contrary contained herein:
(i) the Purchase Price aggregate principal amount of the Asset, together with any purchased accrued interest with respect thereto (as specified Borrowing of Tranche A Term Loans shall be in the Approval Request) minus amount of the aggregate Tranche A Term Loan Commitments, and the aggregate principal amount of the Borrowing of Tranche B Term Loans shall be in the amount of the aggregate Tranche B Term Loan Commitments;
(ii) the balance aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (if any) or, in the Trust Accountcase of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(iii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date (which shall be the Closing Date, in the case of the Term Loans), each Lender will make available to the Administrative Agent at its office referred to in Section 11.5 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of have made such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request amounts available to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestas provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject amounts available to the terms Borrower in accordance with Section 2.3(a) and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soAdministrative Agent.
Appears in 1 contract
Borrowings. If, prior (a) Subject to the Conversion Dateterms and conditions of this Agreement, the Collateral Manager wishes to purchase an Asset on behalf Loans shall, at the option of the Borrower Borrower, be either Base Rate Loans or LIBOR Loans, provided, however, that all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type and Class.
(b) In order to make a Borrowing (other than (x) Borrowings for the purpose of repaying unpaid Reimbursement Obligations, which the Approval Request has been approved shall be made pursuant to Section 2(b3.05 and (y) and funds in the Trust Account are insufficient Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 p.m., three (3) Business Days prior to each Borrowing (or, in the proposed case of any Borrowing of Base Rate Loans, 12:00 p.m. on the date of such Borrowing); provided, however, that notwithstanding the Loanforegoing, the Lenders each time it receives Initial Term Loans borrowed on the Closing Date may, at the election of the Borrower, be borrowed as LIBOR Loans and any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to “Notice of
(i) the Purchase Price aggregate principal amount, Class and initial Type of the AssetLoans to be made pursuant to such Borrowing, together with any purchased accrued interest with respect thereto (as specified ii) in the Approval Requestcase of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto and (iii) minus the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Term Lender or Revolving Credit Lender, as applicable, of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of the Borrowing of Initial Term Loans shall be in the amount of the aggregate Initial Term Loan Commitments;
(ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable aggregate principal amount of each Loan Borrowing comprised of Base Rate Loans shall not be less than $250,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments), the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof,
(iii) if the Borrower shall have failed to designate the Type of Loans, then it shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) In the case of each Borrowing of Loans, not later than 10:00 a.m. (2:00 p.m. for same day Borrowing of Base Rate Loans) on the date specified requested Borrowing Date (which shall be the Closing Date, in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction case of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphInitial Term Loans), the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request each Lender will make available to the Administrative Agent on at its office referred to in Section 12.05 (or at such other location as the first or second Business Day prior Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the proposed date amount of the funding Loan to be made by such Lender. Subject to the satisfaction or waiver of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestapplicable conditions to lending hereunder, the Administrative Agent shall promptly notify will make the Lenders aggregate of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject amounts available to the terms Borrower in accordance with Section 2.03 and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soAdministrative Agent.
Appears in 1 contract
Sources: Credit Agreement
Borrowings. IfThe Borrower will not and will not permit any Subsidiary to create, prior assume or suffer to exist any unsecured or secured Indebtedness of any kind or any reimbursement obligation or other similar liabilities with respect to letters of credit issued for the Borrower's or any Subsidiary's account (other than non-recourse letters of credit or surety bonds issued as credit enhancement); PROVIDED, that this Section 8.04 shall not apply to the Conversion Datefollowing (collectively, the Collateral Manager wishes to purchase an Asset on behalf "Permitted Debt"):
(a) any Loans obtained hereunder;
(b) any secured Indebtedness of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds or of any Subsidiary created in the Trust Account course of purchasing or developing real estate or financing construction or other improvements thereon or purchasing furniture, fixtures or other equipment therefor or any other related Indebtedness of the Borrower or of any Subsidiary or any refinancings thereof, provided, that neither the Borrower nor any Subsidiary (other than a Subsidiary whose sole assets consist of contiguous parcels of land which are insufficient to provide for being purchased or developed with such purchasefinancing, the Collateral Manager shall request a Loan for such purpose byimprovements, no later than noonif any, New York City timethereon, on the third Business Day preceding the proposed date of such Loanfurniture, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required fixtures and other equipment used in connection therewith, a “Borrowing Request”). The Administrative receivables arising from tenants in connection therewith and the proceeds of such receivables and other property directly obtained from the ownership of such assets) shall have any personal liability for such Indebtedness, the creditors' recourse being solely to the property being pledged as collateral for such Indebtedness and the income therefrom;
(i) Indebtedness under any Hedge Agreement relating to Indebtedness otherwise permitted under this Section 8.04, provided, that, any Hedge Agreement proposed to be entered into by the Borrower or any Subsidiary that will not be provided by one or more of the Agents or the Banks shall require the prior written consent of the Required Banks (such written consent to be delivered by each consenting Bank to the Agent shall notify, as soon as reasonably practical but in no event later not more than 5:00 p.m. New York City time three (3) Business Days prior after the request for such consent has been delivered by the Borrower to the proposed date of the LoanAgent, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lendersprovided, that, each Loan Bank that does not deliver such written consent within such three (3) Business Day period shall be in a minimum principal amount of $500,000 deemed to have denied the request for such Hedge Agreement) and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) Indebtedness of any of the balance Borrower's Subsidiaries (whose sole assets consist of contiguous parcels of lands, the improvements, if any) , thereon, fixtures and other equipment used in the Trust Account. To the extent that more than one Lender is a party heretoconnection therewith, each Loan shall consist of loans made by the Lenders ratably receivables arising from tenants in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request connection therewith and the proceeds thereof shall be paid into of such receivables and other property directly obtained from the Trust Account or otherwise at the direction ownership of the Borrower such assets) under Hedge Agreements that are recourse solely to such Subsidiary; or
(or the Collateral Manager on its behalfd) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund Indebtedness owed by any Loans Subsidiary to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred as permitted by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soSection 8.06(b) hereof.
Appears in 1 contract
Borrowings. If(a) The Loans shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan), PROVIDED that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, (ii) Existing Loans that are LIBOR Loans shall retain their respective Interest Periods determined in accordance with the applicable provisions of the Original Credit Agreement, (iii) the Loans made on the Restatement Effective Date shall be made initially as Base Rate Loans, and (iv) notwithstanding any other provision of this Agreement, no LIBOR Loans having an Interest Period of longer than one month may be borrowed at any time prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf earlier of the Borrower for 60th day after the Restatement Effective Date and the date upon which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to determines in its sole discretion, and notifies the Borrower) an irrevocable notice (which may be signed by , that the Collateral Manager on behalf secondary syndication of the Borrowercredit facility provided for hereunder has been completed (the earlier of such dates, the "Syndication Completion Date").
(b) by electronic mail In order to make a Borrowing (other than Borrowings involving continuations or facsimile transmission substantially in conversions of outstanding Loans, which shall be made pursuant to SECTION 2.11), the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Borrower will give the Administrative Agent shall notify, as soon as reasonably practical but in no event written notice not later than 5:00 p.m. New York City time 12:00 noon, Charlotte time, three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate comprised of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 LIBOR Loans and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower one (or the Collateral Manager on its behalf1) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to each Borrowing to be comprised of Base Rate Loans; PROVIDED, HOWEVER, that requests for the proposed Borrowing of Loans to be made on the Restatement Effective Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the funding "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Loan (an “Expedited Borrowing Request”). Upon receipt Notice of an Expedited Borrowing RequestBorrowing, the Administrative Agent shall will promptly notify the Lenders each Lender of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject Borrowing. Notwithstanding anything to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.contrary contained herein:
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Borrowings. If(a) The Revolving Loans shall, at the option of the Administrative Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no LIBOR Loans may be borrowed at any time prior to the Conversion third (3rd) Business Day after the Closing Date. The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Administrative Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and the day of each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Revolving Credit Commitments less the Aggregate Revolving Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrowers shall have failed to designate the Type of Loans comprising a Borrowing, the Borrowers shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrowers shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrowers shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. Subject to Section 2.3(b), to the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrowers in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Administrative Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 12:00 noon, Charlotte time, on the date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan “Notice of Swingline Borrowing”) shall be given in a minimum the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance (if any) requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrowers in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrowers to, the Collateral Manager, on behalf of the Borrower, may deliver cause a Borrowing Request of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the first or second Borrowers), not later than 11:00 a.m., Charlotte time, one (1) Business Day prior to the proposed Borrowing Date therefore, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrowers) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrowers from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to any Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrowers as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrowers in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make Administrative Agent, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Loan subject Borrowing of Revolving Loans to meet the terms and minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
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Borrowings. If(a) The Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request Borrower and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this Agreement, except be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan); provided that (i) all Loans comprising the Borrower shall pay same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no LIBOR Loan may be borrowed at any time prior to the Lenders any lossesthird Business Day after the Restatement Effective Date.
(b) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Loans, costs or expenses incurred by which shall be made pursuant to Section 2.11), each Borrower will give the Lenders in connection with making such Loan on such proposed funding date Administrative Agent written notice not later than 11:00 a.m. three Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 10:00 a.m. on the date any interest is due under same Business Day of such LoanBorrowing of Base Rate Loans; provided, however, that requests for the Borrowing of any Loans to be made on the Restatement Effective Date may, at the discretion of the Administrative Agent, be given with less advance notice than the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Tranche 1 Commitments);
(ii) if the Lenders are unable applicable Borrower shall have failed to designate the Type of Loans comprising a Borrowing, such Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then such Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) As provided in Sections 2.5(b) and 2.5(c), the Borrowers shall have the right to terminate in whole or permanently reduce ratably in part the unused Commitments of the Lenders.
(d) Not later than 1:00 p.m. on the requested Borrowing Date, each Tranche 1 Lender will make a Loan pursuant to an Expedited Borrowing Request due available to the occurrence Administrative Agent at its office referred to in Section 11.5 (or such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptionsthe Loan to be made by such Tranche 1 Lender. To the extent the Tranche 1 Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Lenders shall Administrative Agent will make the aggregate of such Loan subject amounts available to the terms applicable Borrower in accordance with Section 2.3(a) and conditions for Loans otherwise set forth in this Agreement like funds as soon as they are reasonably able to do soreceived by the Administrative Agent.
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Borrowings. If(a) Subject to the terms and conditions hereof, on any Business Day prior to the Conversion Commitment Termination Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent Issuer (with a copy to the Borrower) an irrevocable notice (which may be signed by or the Collateral Manager on behalf of the BorrowerIssuer) by electronic mail or facsimile transmission substantially in the form of Annex B hereto may request Borrowings (together with any attachments required in connection therewith, each a “Borrowing Request”). The Administrative Agent shall notify, ) hereunder.
(b) From time to time as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior required pursuant to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction the terms of the conditions to borrowing set forth in this Section 2 and in Section 7Indenture, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Issuer (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost behalf of the related Asset. The Lenders shall not fund any Loans Issuer) may deliver to the Borrower if Revolving Credit Note Agent and the Class A-R Noteholders a Default has occurred notice (with a copy to the Trustee and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf if not the notifying party), substantially in the form of the BorrowerExhibit A hereto (each, may deliver a “Notice of Borrowing”), of a proposed Borrowing Request to the Administrative Agent no later than 5:00 p.m. (New York City time) on the first or second third Business Day prior to the proposed date Borrowing Date. Each of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestIssuer and, if applicable, the Administrative Collateral Manager agrees that any Notice of Borrowing delivered pursuant to this Section 2.1(b) shall be transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders by facsimile or electronic mail (to the facsimile number or electronic mail address, as the case may be, specified on the Revolving Credit Note Agent’s and each Class A-R Noteholder’s respective signature pages to this Agreement), shall be substantially in the form of Exhibit A hereto, and shall specify the proposed Borrowing Date (which shall be a Business Day), the amount of such proposed Borrowing and relevant wire transfer instructions. In the event any Notice of Borrowing is not transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders until after 5:00 p.m. (New York City time) on a Business Day, it will be treated as having been transmitted on the following Business Day for all purposes hereunder. The Revolving Credit Note Agent shall promptly notify the Lenders Collateral Manager promptly (and in any event within one Business Day) of any change to the facsimile number or electronic mail address specified on each Class A-R Noteholder’s signature page to this Agreement to the extent that the Revolving Credit Note Agent has received notice of such Loanchange from a Class A-R Noteholder.
(c) So long as (x) the Commitment Termination Date has not occurred and (y) the conditions to funding set out in Section 3.1 have been satisfied, and the Lenders Class A-R Noteholders shall use commercially reasonable efforts make Advances to the Issuer on the Borrowing Date specified in the Notice of Borrowing (pro rata based on their respective Commitment Percentages) as follows:
(i) each Class A-R Noteholder obligated to make such Loan an Advance hereunder, no later than 12:00 p.m. (New York City time) on the proposed funding date Borrowing Date specified in the Notice of Borrowing, shall have made available to the Trustee, in immediately available funds, an amount equal to its Commitment Percentage of the Borrowing in respect of such Advance in accordance with the wire transfer instructions set forth in the Expedited Notice of Borrowing;
(ii) a Class A-R Noteholder that has elected to establish a Class A-R Prepayment Account pursuant to Section 2.5(a) shall be deemed to satisfy its obligation under clause (i) if, no later than 12:00 p.m. (New York City time) on the Borrowing Request subject Date specified in the Notice of Borrowing, such Class A-R Noteholder has cash standing to the terms and conditions for borrowings otherwise set forth credit of its Class A-R Prepayment Account in this Agreementan amount no less than its Commitment Percentage of the Borrowing in respect of such Advance; If, except that as of 12:00 p.m. (New York City time) on the Borrower shall pay Borrowing Date specified in the related Notice of Borrowing:
(A) each Class A-R Noteholder has satisfied its Advance payment obligation (either by payment to the Lenders Trustee in accordance with Section 2.1(c)(i) or deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) the Trustee shall transfer all funds received pursuant to Section 2.1(c)(i) to the Principal Collection Subaccount and (II) in the case of any lossesClass A-R Noteholder that has satisfied such obligation pursuant to Section 2.1(c)(ii), costs the Trustee shall instruct the Custodian (without consent of such Class A-R Noteholder) to transfer cash in an amount equal to such Class A-R Noteholder’s Commitment Percentage of the Borrowing in respect of such Advance from such Class A-R Prepayment Account to the Principal Collection Subaccount; or
(B) any Class A-R Noteholder has failed to satisfy its Advance payment obligation (whether by payment to the Trustee in accordance with Section 2.1(c)(i) or expenses incurred by deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) if the Lenders in connection Trustee has received funds from a Class A-R Noteholder pursuant to Section 2.1(c)(i), the Trustee shall return such funds to such Class A-R Noteholder and (II) with making respect to any funds standing to the credit of a Class A-R Prepayment Account, the Trustee shall instruct the Custodian to return such Loan on such proposed funding date funds to the related Class A-R Noteholder. For the avoidance of doubt, if with respect to any Advance, a Class A-R Noteholder has satisfied its Advance payment obligation pursuant to Section 2.1(c)(ii) but any other Class A-R Noteholder has failed to satisfy its own Advance payment obligation as of 12:00 p.m. (New York City time) on the date any interest is due under Borrowing Date, the Trustee shall not be entitled to instruct the Custodian to transfer cash from such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due Class A-R Prepayment Account to the occurrence of a force majeure, Issuer or any other unexpected Person (other than such Class A-R Noteholder as required by sub-clause (B) above) without the consent of such Class A-R Noteholder.
(d) The Issuer hereby agrees that each Class A-R Noteholder, acting in good faith, (i) is entitled to rely upon any Notice of Borrowing furnished to such Class A-R Noteholder hereunder by the Collateral Manager purporting to act on behalf of the Issuer, is genuine and unforeseen eventauthorized and (ii) shall not be liable to the Issuer with respect to any action taken or omitted to be taken by such Class A-R Noteholder in good faith in accordance with any such Notice of Borrowing.
(e) Following the termination of any Bond Transaction in accordance with Clause 3(a)(i) of the A-R Note/Bond Master TRS Confirmation, includingso long as (i) the Commitment Termination Date has not occurred, without limitation(ii) the conditions to funding set out in Section 3.1 have been satisfied, market disruptions(iii) the Capital Contribution Amount (defined below) is less than or equal to the Remaining Unfunded Facility Amount on such day (determined after giving effect to any increase thereto resulting from such termination), and (iv) the only Class A-R Noteholders are the Initial Holders, each Class A-R Noteholder shall, promptly following, but in any event no later than the day falling two Business Days following, the Lenders shall relevant Termination Settlement Date (the “Capital Contribution Date”), make such Loan subject a capital contribution to the terms Issuer of an amount equal to the relevant Final Price (together, the “Capital Contribution Amount”). Each capital contribution made by a Class A-R Noteholder in accordance with this Section 2.1(e) shall be:
(i) deposited by the Issuer into the Principal Collection Subaccount for the benefit of the Secured Parties in accordance with Section 10.2(a) of the Indenture; and
(ii) deemed to constitute a “Borrowing” and conditions an “Advance” for Loans otherwise set forth in the purposes of this Agreement as soon as they are reasonably able to do soand the Indenture and the “Borrowing Date” for such Borrowing shall be the relevant Capital Contribution Date.
Appears in 1 contract
Borrowings. If, prior to (a) The Borrower agrees that during the Conversion Date, period from the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, date hereof until 5:30 P.M. (New York City time) on August 27, on 1999, it will not give any Notice of Borrowing for Swingline Loans or Revolving Credit Loans in an amount in excess of its actual cash needs in the third Business Day preceding ordinary course of business (net of other sources of fluids available or expected to be available to it, including previous Borrowings) during the proposed three-day period beginning with the related date of such LoanBorrowing, providing for amounts it actually intends to the Administrative Agent (pay and determined consistent with a copy to the Borrower's historical cash management practices (it being agreed that such practices may need to take into account any changes in fluids availability made by the Vencor Companies' cash management banks as a result of Vencor' 5 current financial condition), as certified in reasonable detail (including a breakdown by category of the expenses or other amounts to be paid during such periods) an irrevocable notice by the Borrower's Chief Financial Officer or Treasurer in a certificate accompanying such Notice of Borrowing, provided that:
(which i) if the amount so determined is less than $1,000,000, such Borrowing may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus 1,000,000;
(ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may Borrower will not make any Loan Borrowing for the purpose of making payment of any rent or portion of other sum payable to any Ventas Company under a Loan by causing any domestic or foreign branch or Affiliate of such Lender Master Lease Agreement except on the date a Vencor Company is actually going to make such Loan payment (as certified by the Borrower's Chief Financial Officer or Treasurer in the certificate accompanying the related Notice of Borrowing), and the requirement to make any such payment shall be disregarded when determining the Borrower's actual cash needs on any day prior to such day;
(iii) the maximum amount of Swingline Borrowings and Revolving Credit Borrowings and Aggregate LC Exposure that may be outstanding during the Waiver Period may not exceed $55,000,000 (determined without including the Aggregate LC Exposure on account of Letters of Credit outstanding on the date of Waiver No. 1 (and any extensions or concurrent replacements thereof that do not increase the amount thereof)); and
(iv) during any Freeze Period, the Borrower will not give any Notice of Borrowing or request the issuance of any Additional Letter of Credit other than for purposes of extending or concurrently replacing, without any increase in the amount thereof, any Letter of Credit that was outstanding on the date of Waiver No. 1 (or any previous extension or concurrent replacement thereof), and during any Freeze Period neither the Revolving Credit Lenders nor the Swingline Bank nor any LC Issuing Bank shall have any obligation to fund any Borrowing or issue any Additional Letter of Credit (other than as so qualified) (whether or not the related Notice of Borrowing or notice of issuance was given before or during such Freeze Period), provided that the foregoing does not affect the rights of the Swingline Bank and the obligations of the Revolving Credit Lenders under Section 2.08(i) of the Credit Agreement.
(b) The Borrower further agrees that:
(i) all Borrowings made pursuant to this Section 4 shall be made and remain outstanding solely as Base Rate Borrowings;
(ii) any Notice of Borrowing for a Borrowing of Revolving Credit Loans during the Waiver Period shall be given not later than Noon (Eastern time) on the date of such Borrowing and any Notice of Swingline Borrowing during the Wavier Period shall be given not later than 1:00 P.M. (Eastern time) on the date of the related Swingline Borrowing;
(iii) during the Waiver Period and at any time cause thereafter when any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral ManagerApplicable Margin, on behalf LC Fee Rate and Commitment Fee Rate shall always be determined as if Level IX were applicable, regardless of the Borroweractual Leverage Ratio;
(iv) during the Waiver Period and at any time thereafter when any Default has occurred and is continuing, may deliver a Borrowing Request to the Administrative Agent interest on all Base Rate Loans shall be payable on the first or second Business Day prior 22nd day of each month rather than quarterly and letter of credit fees payable pursuant to the proposed date Section 2.07(h) of the funding Credit Agreement and commitment fees payable pursuant to Section 2.09 of a Loan the Credit Agreement shall be payable on the 22nd day of each month instead of quarterly (an “Expedited Borrowing Request”and on each other date specified in the applicable section). Upon receipt of an Expedited Borrowing Request; and
(v) during the Waiver Period and at any time thereafter when any Default has occurred and is continuing, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions Borrower may not elect any Interest Period for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Fixed Rate Loan pursuant to Section 2.06 other than one month or 30 days, as the case may be.
(c) The provisions of Section 4(a) (and for purposes thereof of any defined term used therein) may not be amended, waived, supplemented or modified in any respect without the written consent of Lenders having outstanding Revolving Credit Exposures and/or outstanding Facility A Loans in an Expedited Borrowing Request due aggregate amount (excluding accrued interest) equal to at least 75% of the occurrence sum of a force majeure, or any other unexpected (x) the aggregate amount of the Revolving Credit Exposures at such time and unforeseen event, including, without limitation, market disruptions, (y) the Lenders shall make aggregate outstanding principal amount of Facility A Loans at such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sotime.
Appears in 1 contract
Sources: Waiver (Vencor Inc)
Borrowings. If(a) The Revolving Loans shall, prior at the option of the Administrative Borrower and subject to the Conversion Dateterms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Loans comprising the Collateral Manager wishes to purchase an Asset on behalf same Borrowing shall, unless otherwise specifically provided herein, be of the Borrower for same Type. The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Administrative Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and the day of each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Revolving Credit Commitments less the Aggregate Revolving Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrowers shall have failed to designate the Type of Loans comprising a Borrowing, the Borrowers shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrowers shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrowers shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. Subject to Section 2.3(b), to the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrowers in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Administrative Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 12:00 noon, Charlotte time, on the date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan “Notice of Swingline Borrowing”) shall be given in a minimum the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance (if any) requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrowers in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrowers to, the Collateral Manager, on behalf of the Borrower, may deliver cause a Borrowing Request of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the first or second Borrowers), not later than 11:00 a.m., Charlotte time, one (1) Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrowers) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrowers from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to any Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrowers as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrowers in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make Administrative Agent, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Loan subject Borrowing of Revolving Loans to meet the terms and minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Borrowings. If, prior The obligation of any Lender to make its initial Loan on the occasion of the initial Borrowing is subject to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf satisfaction of the Borrower for which conditions set forth in Section 3.1 and the Approval Request has been approved pursuant to Section 2(b) and funds following conditions (provided, however, that in the Trust Account are insufficient to provide for such purchase, event the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Lender makes its initial Loan, providing such conditions will be deemed to be satisfied or waived, as applicable):
(a) The initial Term Loan shall be in an amount no less than $250,000,000.
(b) The Agents shall have received evidence satisfactory to the Administrative Agent and the Lenders that (with a copy w) the grant of security pursuant to the Granting Clause herein of all of the Borrower) an irrevocable notice (which may be signed by ’s right, title and interest in and to the Collateral Manager pledged to the Collateral Agent on the Closing Date shall be effective in all relevant jurisdictions, (x) delivery of such Collateral in accordance with Section 8.7 to the Custodian or the Document Custodian, as applicable, shall have been effected, (y) the Borrower (or the Services Provider on behalf of the Borrower) will deliver copies of all Related Contracts for such Collateral in its possession to the Document Custodian in accordance with Sections 5.26 and 14.1(b) and (z) all other actions, recordings and filings that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created by electronic mail or facsimile transmission substantially the Granting Clause have been taken.
(c) The Agents shall have received a certificate of an Authorized Officer of the Services Provider (which certificate shall include a schedule listing the Collateral Loans owned by the Borrower on the Initial Borrowing Date), to the effect that, (1) in the form case of Annex B hereto (together with any attachments required in connection therewitheach item of Collateral pledged to the Collateral Agent, a “on the Initial Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days Date and immediately prior to the proposed date delivery thereof on or prior to the Initial Borrowing Date, (A)(w) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for Permitted Liens and those which have been released on or prior to the Initial Borrowing Date; (x) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (w) above; (y) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if any such interest has been assigned, pledged or otherwise encumbered, it has been released) other than pursuant to this Agreement; and (z) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (B) upon the Grant by the Borrower of a security interest in the Collateral pursuant to the Granting Clause and upon the delivery of Collateral that is required to be delivered to the Collateral Agent hereunder, the filing of all UCC-1 financing statements as are necessary to perfect the interests of the LoanSecured Parties in the Collateral and the execution of the Account Control Agreement, the Lenders each time it receives Collateral Agent shall have a Borrowing Request. Unless first priority perfected security interest in the Collateral, except in respect of any Permitted Lien or as otherwise agreed permitted by this Agreement and (2) immediately before and after giving effect to by the LendersBorrowings, each Loan the Overcollateralization Ratio Test shall be satisfied (as demonstrated in a minimum principal amount writing attached to the certificate of $500,000 and the Services Provider).
(d) The Agents shall be in have received a certificate of an amount (not less than zero) equal to Authorized Officer of the Borrower certifying that:
(i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus Closing Date Portfolio Condition is satisfied;
(ii) immediately after giving effect to the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan Borrowings to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of made on the conditions to borrowing set forth in this Section 2 and in Section 7, Initial Borrowing Date (on a pro forma basis) the Lenders shall advance the applicable aggregate outstanding principal amount of the Revolving Loans shall not exceed the Total Revolving Commitment and the aggregate outstanding principal amount of the Term Loans shall not exceed the Total Term Commitment, in each Loan case, as in effect on the date specified in Initial Borrowing Date;
(iii) immediately before and after such Borrowing, no Default shall have occurred and be continuing both before and after giving effect to the related Borrowing Request making of such Loans;
(iv) the representations and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction warranties of the Borrower (or the Collateral Manager on its behalf) as set forth contained in the Borrowing Request for application toward the acquisition cost this Agreement and each of the related Asset. The Lenders other Loan Documents shall not fund any Loans be true and correct in all material respects on and as of the Initial Borrowing Date (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) both before and after giving effect to the Borrower if making of such Loans;
(v) no law or regulation shall have been adopted, no order, judgment or decree of any Governmental Authority shall have been issued, and no litigation shall be pending or, to the actual knowledge of a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf Senior Authorized Officer of the Borrower, may deliver a Borrowing Request threatened, which does or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain the making or repayment of the Loans or the consummation of the transactions among the Borrower, the Services Provider, the Lenders and the Agents contemplated by this Agreement; and
(vi) each of the Loan Documents is in full force and effect and is the binding and enforceable obligation of the Borrower and the Services Provider, in each case, to the extent such Person is a party thereto (except for those provisions of any Loan Document not material, individually or in the aggregate with other affected provisions, to the interests of any of the Lenders).
(e) The Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts have received a fully completed and executed Final Funds Flow/Disbursements Authorization letter, including all schedules and exhibits attached thereto, directing the disbursement of the initial Borrowing hereunder, together with payments of fees and expenses and all other payments required to be made on the Closing Date.
(f) The Agents shall have received such other opinions, instruments, certificates and documents from the Borrower as the Agents or any Lender shall have reasonably requested; provided that sufficient notice of such request has been given to the Borrower (though nothing herein shall impose an obligation on any Agent to make any such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sorequest).
Appears in 1 contract
Sources: Credit Agreement (Owl Rock Technology Finance Corp.)
Borrowings. If(a) On the terms and conditions set forth herein, prior to including this Section and Article III, following receipt by the Conversion DateAdministrative Agent of a Notice of Borrowing, each Lender severally agrees to, at the Collateral Manager wishes to purchase Borrower’s request, on any Business Day during the Revolving Period make an Asset advance (each such advance made by a Lender, a “Loan”) on behalf a pro rata basis in the amount of each such Lender’s Lender Percentage of the total principal amount of any Loan requested by the Borrower for which on a Borrowing Date.
(b) The Borrower may request advances hereunder by notifying the Approval Request has been approved pursuant to Section 2(b) Administrative Agent and funds in the Trust Account are insufficient to provide for such purchaseLenders of the proposed advance, at the Collateral Manager shall request a Loan for such purpose bysole discretion of the Borrower, no not later than noon1:00 p.m., New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent at least two (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (32) Business Days prior to the requested Borrowing Date. The Borrower shall make such request by delivering to the Administrative Agent and the Lenders:
(i) a written notice in the form attached hereto as Exhibit D (each such notice a “Notice of Borrowing”), which shall include, among other things, (A) the proposed date Borrowing Date, a calculation of the LoanBorrowing Base as of the date the Loan is requested, (B) the Lenders each time it receives a Eligible Receivables to be Pledged in connection with such Borrowing Request. Unless otherwise agreed to by the Lenders(and upon such Borrowing, each Loan such Receivables shall be in a minimum principal Pledged Receivables hereunder) and (C) the amount of $500,000 and the Loan requested, which shall be in an amount (not less than zero) at least equal to $250,000; and
(ii) a copy of the Schedule of Receivables along with the related Transfer Notice (including Transfer Schedule) that a Seller provided to the Borrower pursuant to Section 2.01(b) of the Sale and Contribution Agreement.
(c) a review and certification by the Verification Agent of the Eligible Receivables to be Pledged in connection with such Borrowing.
(d) Following receipt by the Administrative Agent of a Notice of Borrowing, and prior to the Revolving Period Termination Date, each Lender severally agrees to make its Lender Advance of any Loan requested by the Borrower, subject to the conditions contained herein, in an aggregate amount equal to the Loan so requested.
(e) In no event shall:
(i) a Lender be required on any date to fund a principal amount of a Loan that would cause the Purchase Price of the Asset, Loans Outstanding with respect to such Lender (together with any purchased accrued interest with respect thereto (as specified in the Approval Requestamount of Loans, if any, that have been requested of such Lender pursuant to Section 2.01(b) minus for which the Borrowing Date has not yet occurred) to exceed such Lender’s Commitment;
(ii) the balance (if any) in the Trust Account. To any Loan be requested hereunder to the extent that after giving effect to such Loan, the Loans Outstanding would exceed the Borrowing Base;
(iii) the aggregate amount of the Loans made on any Borrowing Date exceed the Borrowing Limit on such day; and
(iv) more than one two Lender is a party heretoAdvances be funded during any week.
(f) Subject to the terms, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan conditions, provisions and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing limitations set forth in this Section 2 and in Section 7herein, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request Borrower may borrow, repay or prepay and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Managerreborrow Loans, on behalf of and after the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day Closing Date and prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soRevolving Period Termination Date.
Appears in 1 contract
Sources: Receivables Loan and Security Agreement (Payoneer Global Inc.)
Borrowings. If(a) Each Committed Borrowing shall be made upon the Borrower’s irrevocable notice to Agent, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for may be given by telephone. Each such purchase, the Collateral Manager shall request a Loan for such purpose by, no notice must be received by Agent not later than noon, New York City time, 11:00 a.m. on the third Business Day preceding the proposed requested date of such LoanBorrowing. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to Agent of a written Committed Loan Notice, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be appropriately completed and signed by the Collateral Manager on behalf a Responsible Officer of the Borrower) by electronic mail or facsimile transmission substantially in the form . Each Borrowing of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan Committed Loans shall be in a minimum principal amount of $500,000 and or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice (whether telephonic or written) shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the Asset, together with any purchased accrued interest with respect thereto Committed Borrowing (as specified in the Approval Requestwhich shall be a Business Day) minus and (ii) the balance principal amount of Committed Loans to be borrowed
(if anyb) in Following receipt of a Committed Loan Notice, Agent shall promptly notify each Lender of the Trust Account. To amount of its Applicable Percentage of the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amountsapplicable Committed Loans. Each Lender shall make the amount of its Committed Loan available to Agent in immediately available funds at its option may make any Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Committed Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such LenderNotice. Upon satisfaction of the applicable conditions to borrowing set forth in this Section 2 and 4.02 (and, if such Borrowing is the initial Credit Extension, Section 4.01), Agent shall make all funds so received available to Borrower in Section 7, like funds as received by Agent either by (i) crediting the Lenders shall advance account of Borrower on the applicable principal books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each Loan case in accordance with instructions provided to (and reasonably acceptable to) Agent by Borrower; provided, however, that if, on the date specified in the related Committed Loan Notice with respect to such Borrowing Request and is given by Borrower, there are L/C Borrowings outstanding, then the proceeds thereof of such Borrowing first, shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans applied, to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf payment in full of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of any such LoanL/C Borrowings, and the Lenders second, shall use commercially reasonable efforts be made available to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soprovided above.
Appears in 1 contract
Sources: Credit Agreement (Ats Corp)
Borrowings. If, prior to (a) Each Borrowing shall be made upon the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the applicable Borrower) an ’s irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewitha written Loan Notice, appropriately completed and signed by a “Borrowing Request”). The Responsible Officer of such Borrower) to the Administrative Agent shall notifyAgent, as soon as reasonably practical but in no event which must be given not later than 5:00 p.m. New York City time three 11:00 a.m. at least fifteen (315) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise (or such shorter period as may be agreed to by the Lenders, each Administrative Agent in its sole discretion) in advance of the requested date of any Borrowing. Each Loan Notice shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the AssetBorrowing (which shall be a Business Day), together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance applicable Facility under which such Borrower is requesting a Borrowing and (if anyiii) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist principal amount of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Loans to be borrowed.
(b) Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestFacility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Loan, and Facility of the Lenders applicable Loans. Each Appropriate Lender shall use commercially reasonable efforts make the amount of its Loan available to make such Loan the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the proposed funding date Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 5.03 and Section 5.04 (and, if such Borrowing is the Expedited Borrowing Request subject initial Borrowing, Section 5.01 and Section 5.02), the Administrative Agent shall make all funds so received available to the terms applicable Borrower in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and conditions for borrowings otherwise set forth acceptable to) the Administrative Agent by the applicable Borrower. Notwithstanding anything to the contrary in this Agreement, except that the Borrower shall pay it is understood and agreed that, with respect to the Lenders any losses, costs or expenses incurred Term A Loans to be advanced by the Lenders in connection with making on the Funding Date, any such Lender may make all or any portion of any such Term A Loan by causing one or more of its partners (limited or general) to advance such Term A Loan (or any portion thereof) directly (i.e., not advance all or any portion of the amount of such Loan on first to such proposed funding date Lender or to the Administrative Agent) to Venus USA and/or the lenders under the Existing Credit Agreement in accordance with the terms of the letter of direction and funds flow memorandum delivered pursuant to Section 5.02. Notwithstanding anything to the contrary in this Agreement, the parties hereto acknowledge and agree, for the avoidance of doubt, that notwithstanding any such direct disbursement of all or any portion of Term A Loans by one or more partners of Visium Healthcare Partners, LP on the date any interest is due under Funding Date, Visium Healthcare Partners, LP shall be the “Lender” for all purposes of the Loan Documents with respect to all Term A Loans (and all portions thereof) advanced on the Funding Date, unless and until Visium Healthcare Partners, LP assigns its interests in such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Term A Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soaccordance with Section 11.06.
Appears in 1 contract
Borrowings. IfIn order to make a Borrowing under the Revolving Credit Facility (other than Borrowings involving continuations or conversions of outstanding Revolving Credit Loans, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved shall be requested pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase2.15), the Collateral Manager Borrower will give the Administrative Agent written notice by the delivery of a Notice of Borrowing, which shall request a Loan for such purpose bybe sent by telecopy (confirmed promptly, no later than noonand in any event within five (5) Business Days, New York City time, on by the third Business Day preceding the proposed date of such Loan, providing delivery to the Administrative Agent (with of a copy to the Borrower) an irrevocable notice (which may be Notice of Borrowing manually signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith), a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Philadelphia time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Rate Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that a request for a Borrowing to be made on the proposed date Closing Date may, at the discretion of the LoanAdministrative Agent, be given later than the times specified hereinabove, but any Revolving Credit Loans made on the Closing Date shall be made initially as Base Rate Loans. Each Notice of Borrowing shall be irrevocable, and shall specify (a) the aggregate principal amount and initial Type of the Revolving Credit Loans to be made pursuant to such Borrowing, (b) in the case of a Borrowing of LIBOR Rate Loans, the Lenders each time it receives a initial Interest Period to be applicable thereto, and (c) the requested Borrowing Request. Unless otherwise agreed to by the LendersDate, each Loan which shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal Business Day. Notwithstanding anything to the contrary contained herein:
(i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable aggregate principal amount of each Loan on the date specified Borrowing comprised of Base Rate Loans shall not be less than $50,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction amount of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”aggregate unutilized Revolving Credit Commitments). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders aggregate principal amount of each Borrowing comprised of LIBOR Rate Loans shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that excess thereof;
(ii) if the Borrower shall pay have failed to designate the Lenders any lossesType of Revolving Credit Loans comprising a Borrowing, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such LoanBorrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; provided, that and
(iii) if the Lenders are unable Borrower shall have failed to make select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Rate Loans, then the Borrower shall be deemed to have selected an Interest Period with a Loan pursuant to an Expedited Borrowing Request due to the occurrence duration of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soone month.
Appears in 1 contract
Sources: Loan Agreement (Kensey Nash Corp)
Borrowings. If, prior Loans may be made available to the Conversion Date, Borrower ---------- requesting (or deemed to have requested) the Collateral Manager wishes Loans by the Lenders pursuant to purchase an Asset Section 2.2(c) ("Lender Advances") and by the Agent acting on behalf of the Borrower for which the Approval Request has been approved -------------- --------------- Lenders pursuant to Section 2(b2.2(b) ("Agent Advances"). Except as provided in -------------- -------------- Sections 2.2(b)(ii), 4.11(c) and funds 4.14, all Borrowings shall be made only after ------------------- ------- ---- receipt by the Agent of a Notice of Borrowing (i) on the Effective Date, in the Trust Account are insufficient to provide for such purchasecase of a Borrowing on the Effective Date, the Collateral Manager shall request a Loan for such purpose by, no (ii) not later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. 1:00 P.M. New York City time three (3) on the Business Days prior to Day which is the proposed Borrowing date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto to Lender Advances of Prime Rate Loans made after the Effective Date, (as specified in the Approval Requestiii) minus (ii) the balance (if any) in the Trust Account. To the extent that more not later than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any 1:00 P.M. New York City time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second third Business Day prior to the proposed Borrowing date with respect to Lender Advances of Eurodollar Rate Loans after the Effective Date and (iv) not later than 1:00 P.M. New York City time on the Business Day which is the proposed Borrowing date with respect to Agent Advances of Prime Rate Loans made after the Effective Date. Each Borrowing shall, unless otherwise specifically provided herein, consist entirely of Loans of the funding same Type. Borrowings of a Loan Prime Rate Loans on the same Business Day shall be in an aggregate principal amount for all Borrowers requesting that Loans be made as, or converted into, Prime Rate Loans on such Business Day of not less than $1,000,000 or an integral multiple of $500,000 in excess thereof. Borrowings of Eurodollar Rate Loans on the same Business Day shall be in an aggregate principal amount for all Borrowers requesting that Loans be made or continued as, or converted into, Eurodollar Rate Loans with the same Interest Period on such Business Day of not less than $5,000,000 or an integral multiple of $1,000,000 in excess thereof. Subject to the foregoing limits, each Borrower may request one or more Borrowings of Prime Rate Loans on the same Business Day, but may request only one Borrowing of Eurodollar Rate Loans (an “Expedited Borrowing Request”excluding continuations of Eurodollar Rate Loans) for any Business Day (which shall be funded simultaneously with all Loans requested to be made as, or converted into, Eurodollar Rate Loans requested by the other Borrowers on such Business Day). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan All new Loans made on the proposed funding date set forth Effective Date shall initially be Prime Rate Loans and thereafter may be continued as Prime Rate Loans or converted into Eurodollar Rate Loans, in the Expedited Borrowing Request manner provided in Section ------- 4.14(b) and subject to the terms and conditions for borrowings otherwise therein set forth and in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date Section 5.2. All ------- ----------- Loans outstanding on the date any Effective Date and not repaid under the Original Credit Agreement shall remain outstanding hereunder as the same Type of Loan, but shall bear interest is due under such Loan; provided, that if at the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to rates provided herein from the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soEffective Date.
Appears in 1 contract
Borrowings. If, prior Each Term Loan shall be made upon the Borrower’s irrevocable notice to the Conversion DateAdministrative Agent which shall be given by a Borrowing Request, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no given not later than noon, 1:00 P.M. (New York City time, ) on the third (3rd) Business Day preceding prior to the proposed date of the requested Borrowing (or, for Borrowings made on the Closing Date, one (1) Business Day prior to the date of such LoanBorrowing), providing by the Borrower to the Administrative Agent (with a copy Agent, which shall give to the Borrower) an irrevocable each Lender prompt notice (which may be signed by the Collateral Manager on behalf of the Borrower) thereof by electronic mail or facsimile transmission substantially in the form mail. Each such notice of Annex B hereto a Borrowing (together with any attachments required in connection therewith, a “Borrowing Request”) shall be by electronic mail, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day), (ii) aggregate amount of such Borrowing and (iii) wiring instructions for the Retention Controlled Account or, for Borrowings made on the Closing Date, the Funds Flow. The Each Lender shall, before 2:00 P.M. (New York City time) on the date of such Borrowing, make available to the Administrative Agent to the Administrative Agent’s Account, by wire transfer in same day funds, such L▇▇▇▇▇’s ratable portion of such Borrowing. Upon receipt of all requested funds, the Administrative Agent will make such funds received available to the Borrower in same day funds at the Retention Controlled Account. Unless the Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days have received written notice from a Lender prior to the proposed date of the Loan, the Lenders each time it receives a any Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to will not make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request available to the Administrative Agent such L▇▇▇▇▇’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on the first or second Business Day such date in accordance with prior paragraph of this Section and may, but shall not be obligated to, in reliance on such assumption and in its sole discretion, make available to the proposed date Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the funding applicable Borrowing available to the Administrative Agent, then the applicable L▇▇▇▇▇ agrees to pay to the Administrative Agent an amount equal to such share on demand of a Loan (an “Expedited Borrowing Request”)the Administrative Agent. Upon receipt If such Lender does not pay such corresponding amount forthwith upon demand of an Expedited Borrowing Requestthe Administrative Agent therefor, the Administrative Agent shall promptly notify the Lenders of such LoanBorrower, and the Lenders Borrower agrees to pay such corresponding amount to the Administrative Agent forthwith on demand. The Administrative Agent shall use commercially reasonable efforts also be entitled to make recover from such Loan Lender or the Borrower interest on such corresponding amount, for each day from and including the proposed funding date set forth such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the Expedited case of such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to such Borrowing Request subject in accordance with Section 2.5. If such Lender pays such amount to the terms and conditions for borrowings otherwise set forth Administrative Agent, then such amount shall constitute such Lender’s Borrowing included in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soborrowing.
Appears in 1 contract
Borrowings. If, prior The obligation of any Lender to make a Loan on the occasion of any Borrowing is subject to the Conversion satisfaction of the following conditions:
(a) in the case of the Class A-T-1 Borrowing on the Effective Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of conditions precedent set forth in Section 3.1 shall have been fully satisfied on or prior to the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus applicable Borrowing Date; and (ii) the balance Agents shall have received a certificate of an Authorized Officer of the Collateral Manager (which certificate shall include a schedule listing the Collateral Loans owned by the Borrower on such Borrowing Date), to the effect that, in the case of each item of Collateral pledged to the Collateral Agent, on such Borrowing Date and immediately prior to the delivery thereof, (A) (w) the Borrower is the owner of such Collateral free and clear of any liens, claims or encumbrances of any nature whatsoever except for Permitted Liens and those which are being released on such Borrowing Date; (x) the Borrower has acquired its ownership in such Collateral in good faith without notice of any adverse claim, except as described in clause (w) above; (y) the Borrower has not assigned, pledged or otherwise encumbered any interest in such Collateral (or, if anyany such interest has been assigned, pledged or otherwise encumbered, it has been released) other than pursuant to this Agreement; and (z) the Borrower has full right to grant a security interest in and assign and pledge such Collateral to the Collateral Agent; and (B) upon grant by the Borrower, the Collateral Agent has a first priority perfected security interest in the Collateral, except in respect of any Permitted Lien or as otherwise permitted by this Agreement;
(b) the Administrative Agent shall have received a Notice of Borrowing as required by Section 2.2 and the conditions set forth in clause (c) below are met in connection with such Borrowing (as evidenced by the Notice of Borrowing);
(c) immediately after such Borrowing:
(i) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion case of a Loan by causing any domestic or foreign branch or Affiliate Borrowing of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7Class A-R Loans, the Lenders shall advance the applicable aggregate outstanding principal amount of each Loan the Class A-R Loans shall not exceed the Total Class A-R Commitment as in effect on the date specified such Borrowing Date;
(ii) in the related case of the Borrowing Request of Class A-T-1 Loans, the aggregate outstanding principal amount of the Class A-T-1 Loans shall not exceed the Total Class A-T-1 Commitment as in effect on such Borrowing Date; and
(iii) in the case of the Borrowing of Class A-T-2 Loans, the aggregate outstanding principal amount of the Class A-T-2 Loans shall not exceed the Total Class A-T-2 Commitment as in effect on such Borrowing Date;
(d) except in the case of Class A-R Loans obtained to fund Unfunded Amounts, immediately before and after such Borrowing, no Default shall have occurred and be continuing both before and after giving effect to the proceeds thereof shall be paid into making of such Loans;
(e) except in the Trust Account or otherwise at case of Class A-R Loans obtained to fund Unfunded Amounts, the direction representations and warranties of the Borrower contained in this Agreement and each of the other Loan Documents shall be true and correct in all material respects on and as of the date of such Borrowing (unless stated to relate solely to an earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date) both before and after giving effect to the making of such Loans;
(f) except in the case of Class A-R Loans obtained to fund Unfunded Amounts, no law or regulation shall have been adopted, no order, judgment or decree of any governmental authority shall have been issued, and no litigation shall be pending or, to the actual knowledge of a Senior Authorized Officer of the Borrower, threatened, which does or, with respect to any threatened litigation, seeks to enjoin, prohibit or restrain the making or repayment of the Loans or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost consummation of the related Asset. The Lenders shall not fund any Loans to transactions among the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphBorrower, the Collateral Manager, on behalf the Lenders and the Agents contemplated by this Agreement;
(g) except in the case of Class A-R Loans obtained to fund Unfunded Amounts, each of the BorrowerLoan Documents remains in full force and effect and is the binding and enforceable obligation of the Borrower and the Collateral Manager, may deliver a Borrowing Request in each case, to the Administrative Agent extent such Person is a party thereto (except for those provisions of any Loan Document not material, individually or in the aggregate with other affected provisions, to the interests of any of the Lenders);
(h) except in the case of Class A-R Loans obtained to fund Unfunded Amounts, immediately before and after giving effect to the requested Borrowing, the Eligibility Criteria shall be satisfied (as demonstrated in a writing attached to such Notice of Borrowing); and
(i) in the case of the Class A-T-2 Borrowing on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAdditional Draw Date, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date conditions set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soSection 2.1(h) have been satisfied.
Appears in 1 contract
Sources: Credit Agreement (Fifth Street Senior Floating Rate Corp.)
Borrowings. IfBorrower will not, prior nor permit OSLI, OSMI or OSII to the Conversion Datecreate, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail assume or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may have outstanding at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower indebtedness for borrowed money (or become a guarantor in respect any indebtedness for borrowed money) the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost incurrence of the related Asset. The Lenders shall not fund any Loans to the Borrower if which would create a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in default under this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptionsa default under section 3B.01 or 3B.03; PROVIDED, that this subsection shall not apply to any indebtedness existing on October 4, 1996 or any Swing Loan indebtedness authorized under Subsection 2A.06 hereof.
3. Section 9 DEFINITIONS of the Agreement is amended to delete the definition of EXPIRATION DATE therein and substitute the following therefor: EXPIRATION DATE means the date referred to as such in subsection 2A.02 or such later date, if any, as may be established pursuant to subsection 2A.05.
4. Section 2A.03 of the Agreement is amended by adding the following language after the first sentence: Borrower shall simultaneously deliver a copy of such notice to Mellon.
5. Section 2D.01 of this Agreement is amended by adding the following language at the end of the first sentence: with immediate notice thereof delivered to Mellon utilizing the same method of delivery as utilized to deliver the credit request
6. From and after the effective date of this Fourth Amendment, references in the Credit Agreement (as amended by the First Amendment, the Lenders Second Amendment, the Third Amendment and this Fourth Amendment thereto) shall make such Loan subject be deemed to be references to the terms Agreement as amended by all such amendments (unless otherwise expressly indicated).
7. Borrower restates and conditions for Loans otherwise reaffirms all of its representations and warranties set forth in this Section 4B of the Credit Agreement as soon of the date hereof.
8. This Fourth Amendment and the modifications set forth herein shall be and become effective as they are reasonably able of the date hereof.
9. The Credit Agreement, as amended by the First Amendment, the Second Amendment, the Third Amendment and this Fourth Amendment, is hereby ratified and confirmed.
10. This Fourth Amendment may be executed in one or more counterparts, each counterpart to do sobe executed by Borrower, by NCB-Agent and by one or more or all of the Banks. Each such executed counterpart shall be deemed to be an executed original for all purposes but all such counterparts taken together shall constitute one agreement, which agreement constitutes the entire agreement among the parties hereto with respect to the subject matter hereof.
11. This Fourth Amendment may be executed by representatives of the Banks using facsimile signatures and facsimilied signature pages shall in all respects be binding on all parties hereto and thereto as if such signature pages were originally delivered. Original signature pages for all facsimilied signature pages shall be delivered to NCB-Agent not later than December ___, 1998.
Appears in 1 contract
Sources: Credit Agreement (Olympic Steel Inc)
Borrowings. If(a) Subject to the terms and conditions hereof, on any Business Day on or after December 23, 2020 that occurs prior to the Conversion Commitment Termination Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent Issuer (with a copy to the Borrower) an irrevocable notice (which may be signed by or the Collateral Manager on behalf of the BorrowerIssuer) by electronic mail or facsimile transmission substantially in the form of Annex B hereto may request Borrowings (together with any attachments required in connection therewith, each a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be hereunder in an amount (not less than zero) equal to or greater than the Minimum Borrowing Amount.
(ib) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (From time to time as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably required pursuant to and in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction the terms of the conditions to borrowing set forth in this Section 2 and in Section 7Indenture, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Issuer (or the Collateral Manager on its behalfbehalf of the Issuer) may deliver to the Revolving Credit Note Agent and the Class A-R Noteholders a notice (with a copy to the Trustee and the Collateral Manager, if not the notifying party), substantially in the form of Exhibit A hereto (each, a “Notice of Borrowing”), of a proposed Borrowing no later than 5:00 p.m. (New York City time) on the applicable Cut-off Date. Each of the Issuer and, if applicable, the Collateral Manager agrees that any Notice of Borrowing delivered pursuant to this Section 2.1(b) shall be transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders by electronic mail (to the electronic mail address specified on the Revolving Credit Note Agent’s and each Class A-R Noteholder’s respective signature pages to this Agreement), shall be substantially in the form of Exhibit A hereto, and shall specify the proposed Borrowing Date (which shall be a Business Day), the amount of such proposed Borrowing and relevant wire transfer instructions. In addition, each Notice of Borrowing shall specify whether the proposed Borrowing is a Cut-off Date (Short) Borrowing or a Cut-off Date (Long) Borrowing; it being understood that the Issuer may only specify that a proposed Borrowing is a Cut-off Date (Short) Borrowing to the extent permitted by the definition of “Cut-off Date.” In the event any Notice of Borrowing is not transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders until after 5:00 p.m. (New York City time) on a Business Day, it will be treated as having been transmitted on the following Business Day for all purposes hereunder. The Revolving Credit Note Agent shall notify the Collateral Manager promptly (and in any event within one Business Day) of any change to the electronic mail address specified on each Class A-R Noteholder’s signature page to this Agreement to the extent that the Revolving Credit Note Agent has received notice of such change from a Class A-R Noteholder.
(c) So long as (x) the Commitment Termination Date has not occurred and (y) the conditions to funding set out in Section 3.1 have been satisfied, the Class A-R Noteholders shall make Advances to the Issuer on the Borrowing Date specified in the Notice of Borrowing (pro rata based on their respective Commitment Percentages) as follows:
(i) each Class A-R Noteholder obligated to make an Advance hereunder, no later than 12:00 p.m. (New York City time) on the Borrowing Date specified in the Notice of Borrowing, shall have made available to the Trustee, in immediately available funds, an amount equal to its Commitment Percentage of the Borrowing in respect of such Advance in accordance with the wire transfer instructions set forth in the Notice of Borrowing; and
(ii) a Class A-R Noteholder that has elected to establish a Class A-R Prepayment Account pursuant to Section 2.5(a) shall be deemed to satisfy its obligation under clause (i) if, no later than 12:00 p.m. (New York City time) on the Borrowing Request for application toward Date specified in the acquisition cost Notice of Borrowing, such Class A-R Noteholder has cash standing to the credit of its Class A-R Prepayment Account in an amount no less than its Commitment Percentage of the Borrowing in respect of such Advance; If, as of 12:00 p.m. (New York City time) on the Borrowing Date specified in the related Asset. The Lenders shall not fund any Loans Notice of Borrowing:
(A) each Class A-R Noteholder has satisfied its Advance payment obligation (either by payment to the Borrower if a Default Trustee in accordance with Section 2.1(c)(i) or deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) the Trustee shall transfer all funds received pursuant to Section 2.1(c)(i) to the Principal Collection Subaccount and (II) in the case of any Class A-R Noteholder that has occurred and is continuing. Notwithstanding satisfied such obligation pursuant to Section 2.1(c)(ii), the preceding paragraph, Trustee shall (at the direction of the Collateral Manager) instruct the Custodian (without consent of such Class A-R Noteholder) to transfer cash in an amount equal to such Class A-R Noteholder’s Commitment Percentage of the Borrowing in respect of such Advance from such Class A-R Prepayment Account to the Principal Collection Subaccount; or
(B) any Class A-R Noteholder has failed to satisfy its Advance payment obligation (whether by payment to the Trustee in accordance with Section 2.1(c)(i) or deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) if the Trustee has received funds from a Class A-R Noteholder pursuant to Section 2.1(c)(i), the Trustee shall return such funds to such Class A-R Noteholder and (II) with respect to any funds standing to the credit of a Class A-R Prepayment Account, the Trustee shall (at the direction of the Collateral Manager) instruct the Custodian to return such funds to the related Class A-R Noteholder. For the avoidance of doubt, if with respect to any Advance, a Class A-R Noteholder has satisfied its Advance payment obligation pursuant to Section 2.1(c)(ii) but any other Class A-R Noteholder has failed to satisfy its own Advance payment obligation as of 12:00 p.m. (New York City time) on the Borrowing Date, the Trustee shall not be entitled to instruct the Custodian to transfer cash from such Class A-R Prepayment Account to the Issuer or any other Person (other than such Class A-R Noteholder as required by sub-clause (B) above) without the consent of such Class A-R Noteholder.
(d) The Issuer hereby agrees that each Class A-R Noteholder, acting in good faith, (i) is entitled to rely upon any Notice of Borrowing furnished to such Class A-R Noteholder by the Collateral Manager purporting to act on behalf of the BorrowerIssuer, may deliver a Borrowing Request is genuine and authorized and (ii) shall not be liable to the Administrative Agent on the first Issuer with respect to any action taken or second Business Day prior omitted to the proposed date be taken by such Class A-R Noteholder in good faith in accordance with any such Notice of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrowing.
Appears in 1 contract
Sources: Revolving Credit Note Agreement (CION Investment Corp)
Borrowings. If(a) Subject to the terms and conditions hereof, on any Business Day prior to the Conversion Commitment Termination Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent Issuer (with a copy to the Borrower) an irrevocable notice (which may be signed by or the Collateral Manager on behalf of the BorrowerIssuer) by electronic mail or facsimile transmission substantially in the form of Annex B hereto may request Borrowings (together with any attachments required in connection therewith, each a “Borrowing Request”). The Administrative Agent shall notify, ) hereunder.
(b) From time to time as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior required pursuant to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction the terms of the conditions to borrowing set forth in this Section 2 and in Section 7Indenture, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Issuer (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost behalf of the related Asset. The Lenders shall not fund any Loans Issuer) may deliver to the Borrower if Revolving Credit Note Agent and the Class A-R Noteholders a Default has occurred notice (with a copy to the Trustee and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf if not the notifying party), substantially in the form of the BorrowerExhibit A hereto (each, may deliver a “Notice of Borrowing”), of a proposed Borrowing Request to the Administrative Agent no later than 5:00 p.m. (New York City time) on the first or second third Business Day prior to the proposed date Borrowing Date. Each of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestIssuer and, if applicable, the Administrative Collateral Manager agrees that any Notice of Borrowing delivered pursuant to this Section 2.1(b) shall be transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders by facsimile or electronic mail (to the facsimile number or electronic mail address, as the case may be, specified on the Revolving Credit Note Agent’s and each Class A-R Noteholder’s respective signature pages to this Agreement), shall be substantially in the form of Exhibit A hereto, and shall specify the proposed Borrowing Date (which shall be a Business Day), the amount of such proposed Borrowing and relevant wire transfer instructions. In the event any Notice of Borrowing is not transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders until after 5:00 p.m. (New York City time) on a Business Day, it will be treated as having been transmitted on the following Business Day for all purposes hereunder. The Revolving Credit Note Agent shall promptly notify the Lenders Collateral Manager promptly (and in any event within one Business Day) of any change to the facsimile number or electronic mail address specified on each Class A-R Noteholder’s signature page to this Agreement to the extent that the Revolving Credit Note Agent has received notice of such Loanchange from a Class A-R Noteholder.
(c) So long as (x) the Commitment Termination Date has not occurred and (y) the conditions to funding set out in Section 3.1 have been satisfied, and the Lenders Class A-R Noteholders shall use commercially reasonable efforts make Advances to the Issuer on the Borrowing Date specified in the Notice of Borrowing (pro rata based on their respective Commitment Percentages) as follows:
(i) each Class A-R Noteholder obligated to make such Loan an Advance hereunder, no later than 12:00 p.m. (New York City time) on the proposed funding date Borrowing Date specified in the Notice of Borrowing, shall have made available to the Trustee, in immediately available funds, an amount equal to its Commitment Percentage of the Borrowing in respect of such Advance in accordance with the wire transfer instructions set forth in the Expedited Notice of Borrowing;
(ii) a Class A-R Noteholder that has elected to establish a Class A-R Prepayment Account pursuant to Section 2.5(a) shall be deemed to satisfy its obligation under clause (i) if, no later than 12:00 p.m. (New York City time) on the Borrowing Request subject Date specified in the Notice of Borrowing, such Class A-R Noteholder has cash standing to the terms and conditions for borrowings otherwise set forth credit of its Class A-R Prepayment Account in this Agreementan amount no less than its Commitment Percentage of the Borrowing in respect of such Advance; If, except that as of 12:00 p.m. (New York City time) on the Borrower shall pay Borrowing Date specified in the related Notice of Borrowing:
(A) each Class A-R Noteholder has satisfied its Advance payment obligation (either by payment to the Lenders Trustee in accordance with Section 2.1(c)(i) or deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) the Trustee shall transfer all funds received pursuant to Section 2.1(c)(i) to the Principal Collection Subaccount and (II) in the case of any lossesClass A-R Noteholder that has satsified such obligation pursuant to Section 2.1(c)(ii), costs the Trustee shall instruct the Custodian (without consent of such Class A-R Noteholder) to transfer cash in an amount equal to such Class A-R Noteholder’s Commitment Percentage of the Borrowing in respect of such Advance from such Class A-R Prepayment Account to the Principal Collection Subaccount; or
(B) any Class A-R Noteholder has failed to satisfy its Advance payment obligation (whether by payment to the Trustee in accordance with Section 2.1(c)(i) or expenses incurred by deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) if the Lenders in connection Trustee has received funds from a Class A-R Noteholder pursuant to Section 2.1(c)(i), the Trustee shall return such funds to such Class A-R Noteholder and (II) with making respect to any funds standing to the credit of a Class A-R Prepayment Account, the Trustee shall instruct the Custodian to return such Loan on such proposed funding date funds to the related Class A-R Noteholder. For the avoidance of doubt, if with respect to any Advance, a Class A-R Noteholder has satisfied its Advance payment obligation pursuant to Section 2.1(c)(ii) but any other Class A-R Noteholder has failed to satisfy its own Advance payment obligation as of 12:00 p.m. (New York City time) on the date any interest is due under Borrowing Date, the Trustee shall not be entitled to instruct the Custodian to transfer cash from such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due Class A-R Prepayment Account to the occurrence of a force majeure, Issuer or any other unexpected Person (other than such Class A-R Noteholder as required by sub-clause (B) above) without the consent of such Class A-R Noteholder.
(d) The Issuer hereby agrees that each Class A-R Noteholder, acting in good faith, (i) is entitled to rely upon any Notice of Borrowing furnished to such Class A-R Noteholder hereunder by the Collateral Manager purporting to act on behalf of the Issuer, is genuine and unforeseen event, including, without limitation, market disruptions, the Lenders authorized and (ii) shall make such Loan subject not be liable to the terms and conditions for Loans otherwise set forth Issuer with respect to any action taken or omitted to be taken by such Class A-R Noteholder in this Agreement as soon as they are reasonably able to do sogood faith in accordance with any such Notice of Borrowing.
Appears in 1 contract
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject Subject to the terms and conditions for borrowings otherwise set forth in of this Agreement, except Dollar Loans shall at the option of OCA be either Base Rate Loans or LIBOR Loans, provided that (i) all Loans comprising the Borrower shall pay same Borrowing shall, unless otherwise specifically provided herein, be of the same Type (with regard to both currency and interest rate option, in the case of Foreign Currency Loans), and (ii) no Borrowing of LIBOR Loans may be made at any time prior to the Lenders third (3rd) Business Day after the Closing Date, and no Borrowing of Foreign Currency Loans may be made at any lossestime prior to the fourth (4th) Business Day after the Closing Date.
(b) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Fixed Rate Loans, costs which shall be made pursuant to Section 2.11), the applicable Borrower will give the Agent written notice not later than 11:00 a.m., Charlotte time, the Applicable Number of Business Days prior to each Borrowing; provided, however, that requests for the Borrowing of any Loans to be made on the Closing Date may, at the discretion of the Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of Fixed Rate Loans, the initial Interest Period to be applicable thereto, (3) in the case of a Borrowing of Foreign Currency Loans, the applicable Foreign Currency, and (4) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments); the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; and the aggregate principal amount of each Borrowing comprised of Foreign Currency Loans shall not be less than a Dollar Amount of $1,000,000;
(ii) no more than $5,000,000 in aggregate Dollar Amount of proceeds from any Borrowing may be used to fund the Acquisition Amount (in whole or expenses incurred by the Lenders in part) in connection with making any single Permitted Acquisition (provided that, in connection with any request to the Required Lenders for their approval of an Acquisition as a Permitted Acquisition pursuant to SECTION 6.9(C), the Borrower may also request that the Lenders permit a Borrowing in excess of $5,000,000 to fund all or a portion of the Acquisition Amount in connection therewith); and
(iii) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of Fixed Rate Loans, then such Loan on such proposed funding date Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) In the case of each Borrowing of Dollar Loans, not later than 1:00 p.m., Charlotte time, on the date any interest is due under requested Borrowing Date, each Lender will make available to the Agent at its office referred to in SECTION 12.5 (or at such Loan; providedother location as the Agent may designate) an amount, that if in Dollars and in immediately available funds, equal to the amount of the Dollar Loan to be made by such Lender. To the extent the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due have made such amounts available to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptionsAgent as provided hereinabove, the Lenders shall Agent will make the aggregate of such Loan subject amounts available to OCA in accordance with SECTION 2.3(A) and in like funds as received by the Agent. In the case of each Borrowing of Foreign Currency Loans, not later than 10:00 a.m., Local Time, on the requested Borrowing Date, each Lender will make available to the terms Agent at the office of its applicable Correspondent (or at such other location as the Agent may designate) an amount, in the applicable Foreign Currency and conditions for Loans otherwise set forth in this Agreement immediately available funds, equal to the amount of the Foreign Currency Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Agent as soon provided hereinabove, the Agent will make the aggregate of such amounts available to the applicable Borrower in accordance with SECTION 2.3(A) and in like funds as they are reasonably able to do soreceived by the Agent.
Appears in 1 contract
Sources: Credit Agreement (Orthodontic Centers of America Inc /De/)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the (i) The Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to give the Administrative Agent and each Managing Agent notice of each request for a Borrowing (with including a copy Seasonal Borrowing), pursuant to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amountsthe provisions of Section 4.2 hereof. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of On the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date Borrowing Date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward and subject to all other terms and conditions of this Restated Loan Agreement, each Issuer may, in its sole discretion, make available to its Managing Agent at the acquisition cost office of its Managing Agent set forth in Section 13.1, in immediately available funds, its pro rata share of the related AssetBorrowing. The Lenders On the Borrowing Date specified in the Borrowing Request and subject to all other terms and conditions of this Restated Loan Agreement, with respect to each requested Seasonal Borrowing, the Seasonal Issuer may, in its sole discretion, make available to its Managing Agent at the office of its Managing Agent set forth in Section 13.1, in immediately available funds, its pro rata share of the Borrowing.
(ii) In the event that an Issuer shall elect not to fund any Loans an Advance (including a Seasonal Borrowing) requested by the Borrower, each Group Bank of such Issuer agrees that it shall, on the Borrowing Date specified in the Borrowing Request and subject to all other terms and conditions of this Restated Loan Agreement, make available to its Managing Agent at the office of its Managing Agent set forth in Section 13.1, in immediately available funds, an amount equal to the product of (x) such Bank's Bank Commitment Percentage or Seasonal Bank's Bank Commitment Percentage of the Group Bank Commitment Percentage, multiplied by (y) the portion of such Borrowing that such Issuer or Seasonal Issuer has elected not to fund.
(iii) After each Managing Agent's receipt of funds pursuant to the preceding paragraph (i) or (ii) and upon fulfillment of the applicable conditions set forth in Article IV, each Managing Agent will make such funds available to the Borrower if a Default has occurred and like amount of immediately available funds. So long as the Borrower is continuing. otherwise entitled to make a specific Borrowing, Borrowing Requests that are received by each Managing Agent by 4:00 p.m. (eastern time) on a Business Day will be funded on the next Business Day following receipt of the Borrowing Request.
(iv) Notwithstanding the preceding paragraphforegoing, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request Bank or Seasonal Bank shall not be obligated to make Advances under this Section 2.3 at any time to the Administrative Agent on extent that the first principal amount of all Advances made by such Bank or second Business Day prior Seasonal Bank would exceed such Bank's Bank Commitment or Seasonal Bank's Seasonal Bank Commitment less the outstanding and unpaid principal amount of any loans or purchases made by such Bank or Seasonal Bank under a Liquidity Agreement. Each Bank's or Seasonal Bank's obligation shall be several, such that the failure of any Bank or Seasonal Bank to make available to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders funds in connection with making such Loan on such proposed funding date any Borrowing shall not relieve any other Group Bank of its obligation, if any, hereunder to make funds available on the date of such Borrowing, but no Group Bank shall be responsible for the failure of any interest is due under such Loan; provided, that if the Lenders are unable other Group Bank to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or funds available in connection with any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrowing.
Appears in 1 contract
Sources: Loan Agreement (Pulte Homes Inc/Mi/)
Borrowings. If(a) Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable notice to Administrative Agent, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date and the Credit Extensions on the Delayed Draw Funding Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of SOFR Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a SOFR Loan shall, unless Borrower Representative is notified pursuant to Section 2.17 or Section 2.27 that SOFR Loans are not available, be irrevocable on and after the Lenders related Interest Rate Determination Date, and Borrowers shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each time it receives a Lender of the proposed borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan of SOFR Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction requested date of the conditions to borrowing set forth in this Section 2 and in Section 7Borrowing (which shall be a Business Day), (iii) the Lenders shall advance the applicable principal amount of each Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of SOFR Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower Representative fails to specify between a Base Rate Loan on the date specified or a SOFR Loan in the related Borrowing Request and applicable Funding Notice, then the proceeds thereof applicable NAI-1537228099v31537241654v2 Term Loans or Revolving Loans shall be paid into the Trust Account or otherwise at the direction made as SOFR Loans with an Interest Period of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soone month.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. If(a) Whenever the Borrower desires to make a Borrowing hereunder (other than continuations or conversions of outstanding Loans pursuant to SECTION 2.9 or any Borrowing pursuant to SECTION 2.18), the Borrower will give the Agent written notice (by telecopier or otherwise), prior to the Conversion Date11:00 a.m., the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City Charlotte time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and at least one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the proposed form of EXHIBIT B-1 and shall be appropriately completed to specify (i) the aggregate principal amount and Type of the Loans to be made pursuant to such Borrowing (and, in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto) and (ii) the requested date of the LoanBorrowing (the "Borrowing Date"), the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan which shall be in a minimum Business Day. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing hereunder (y) in the case of Borrowings comprised of Base Rate Loans, shall not be less than $500,000 and 2,000,000 and, if greater, shall be in an amount integral multiple of $500,000 in excess thereof and (z) in the case of Borrowings comprised of LIBOR Loans, shall not be less than zero$3,000,000 and, if greater, shall be in an integral multiple of $1,000,000 in excess thereof;
(ii) equal if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans;
(iiii) if the Purchase Price Borrower shall have failed to select the duration of the AssetInterest Period to be applicable to any Borrowing of LIBOR Loans, together then the Borrower shall be deemed to have selected an Interest Period with a duration of one month; and
(iv) LIBOR Loans under the Facility may not be outstanding under more than seven (7) separate Interest Periods at any purchased accrued interest with respect thereto one time.
(as b) Upon its receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of the proposed Borrowing, of such Lender's Pro Rata Share thereof and of the other matters specified in the Approval Request) minus (ii) Notice of Borrowing. Each such Lender will make the balance (if any) amount of its Pro Rata Share of such Borrowing available to the Agent at its office referred to in SECTION 10.4, for the Trust Accountaccount of the Borrower, in Dollars and in immediately available funds, prior to 2:00 p.m., Charlotte time, on the Borrowing Date. To the extent that more than one Lender is a party heretothe relevant Lenders have made such amounts available to the Agent as provided hereinabove, each Loan shall consist the Agent will make the aggregate of loans made by such amounts available to the Lenders ratably Borrower in accordance with their Individual Lender Maximum Funding Amountssubsection (C) below and in like funds as received by the Agent, as soon as practicable prior to 3:30 p.m., Charlotte time, on the Borrowing Date.
(c) The Borrower hereby authorizes the Agent to disburse the proceeds of each Borrowing in accordance with the terms of any written instructions from any of the Authorized Officers, provided that the Agent shall not be obligated under any circumstances to forward amounts to any account not listed in an Account Designation Letter. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and The Borrower may at any time cause deliver to the Agent an Account Designation Letter listing any additional accounts or deleting any accounts listed in a previous Account Designation Letter.
(d) Unless the Agent has received, prior to 12:00 noon, Charlotte time, on any Borrowing Date, written notice from a Lender that such Lender will not make available to the Agent its Pro Rata Share of the relevant Borrowing, the Agent may assume that such Lender has made its Pro Rata Share of such Borrowing available to the Agent on such Borrowing Date in accordance with subsection (B) above, and the Agent may, in reliance upon such assumption, make a corresponding amount available to the Borrower on such Borrowing Date. If and to the extent that such Lender shall not have made such Pro Rata Share available to the Agent, and the Agent shall have made such corresponding amount available to the Borrower, such Lender, on the one hand, and the Borrower, on the other, severally agree to pay to the Agent forthwith on demand such corresponding amount, together with interest thereon for each day from the date such amount is made available to the Borrower until the date such amount is repaid to the Agent, (i) if recovered from such Lender, at the Federal Funds Rate, and (ii) if recovered from the Borrower, at the rate of interest applicable to Loans comprising such Borrowing, as determined under SECTION 2.6. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender's Loan as part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make any Loan required to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the respective Borrowing Date, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be transferred made by such other Lender as part of any Borrowing.
(f) Each Lender may, at its option, make and maintain any Loan at, to or for the account of any domestic or foreign branch or Affiliate of its Lending Offices, provided that any exercise of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders option shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account not increase or otherwise at adversely affect the direction obligation of the Borrower to compensate or otherwise make additional payments to such Lender or to repay such Loan to or for the account of such Lender in accordance with the terms of this Agreement.
(or g) Any borrowings outstanding under the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders Original Agreement shall not fund any be continued as Loans to the Borrower if a Default has occurred under this Agreement and is continuing. Notwithstanding the preceding paragraphshall be repaid, the Collateral Managertogether with all interest and fees accrued thereon, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soClosing Date.
Appears in 1 contract
Sources: Loan Agreement (American Oncology Resources Inc /De/)
Borrowings. If(a) The Term Loans and Revolving Loans (each, prior together with the Swingline Loans, a “Class” of Loans) shall, at the option of the Administrative Borrower and subject to the Conversion Dateterms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Loans comprising the Collateral Manager wishes to purchase an Asset on behalf same Borrowing shall, unless otherwise specifically provided herein, be of the Borrower for same Type. The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Administrative Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and the day of each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Third Amendment Effective Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Revolving Credit Commitments less the Aggregate Revolving Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrowers shall have failed to designate the Type of Loans comprising a Borrowing, the Borrowers shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrowers shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrowers shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. Subject to Section 2.3(b), to the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrowers in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Administrative Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 12:00 noon, Charlotte time, on the date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan “Notice of Swingline Borrowing”) shall be given in a minimum the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance (if any) requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrowers in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrowers to, the Collateral Manager, on behalf of the Borrower, may deliver cause a Borrowing Request of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the first or second Borrowers), not later than 11:00 a.m., Charlotte time, one (1) Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrowers) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s pro rata share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrowers from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to any Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrowers as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its pro rata share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrowers in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s pro rata share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make Administrative Agent, the Borrowers or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Loan subject Borrowing of Revolving Loans to meet the terms and minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Borrowings. If(a) The Term Loans and the Revolving Loans (each, together ---------- with the Swingline Loans, a "Class" of Loans) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either ABR Loans or LIBOR Loans (each, a "Type" of Loan), provided that (i) all Loans -------- comprising the Borrowing shall, unless otherwise specifically provided herein, be of the same Type, (ii) notwithstanding any other provision of this Agreement, the Term Loans and any Revolving Loans made on the Closing Date shall be made initially as ABR Loans, and (iii) notwithstanding any other provision of this Agreement, no LIBOR Loans having an interest period of longer than one month may be borrowed at any time prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf earlier of the Borrower for 60th day after the Closing Date and the date upon which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to determines in its sole discretion, and notifies the Borrower) an irrevocable notice (which may be signed by , that the Collateral Manager on behalf primary syndication of the Borrower) by electronic mail or facsimile transmission substantially in credit facilities provided for hereunder has been completed (the form earlier of Annex B hereto (together with any attachments required in connection therewithsuch dates, a “Borrowing Request”the "Syndication Completion Date"). The Swingline Loans shall be made and maintained as ABR Loans at all times.
(b) In order to make a Borrowing (other than (w) the Borrowing of the Term Loans on the Closing Date, which the Borrower hereby requests), (x) Borrowings of Swingline Loans, which shall be made pursuant to SECTION 2.2(d), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to SECTION 2.2(e), and (z) Borrowings involving continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to SECTION 2.11), the Borrower will give the Administrative Agent shall notify, as soon as reasonably practical but written notice (or oral notice promptly confirmed in no event writing) not later than 5:00 p.m. New York City time 1:00 p.m., Charlotte time, three (3) Business Days prior to each such Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each such Borrowing to be comprised of ABR Loans; provided, however, that at the discretion of the -------- ------- Administrative Agent, a request for a Borrowing of any Revolving Loans to be made on the Closing Date may be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT A-1 (or, if oral notice is given, shall be promptly followed with a writing in the form of EXHIBIT A-1) and shall specify (x) the aggregate principal amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (z) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Revolving Credit Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of the Borrowing of Term Loans shall be in the amount of the aggregate Term Loan Commitments;
(ii) the aggregate principal amount of each Borrowing of Revolving Loans that is comprised of ABR Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments), and the aggregate principal amount of each Borrowing of Revolving Loans that is comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(iii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of ABR Loans; and
(iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date (which shall be the Closing Date, in the case of the Term Loans), each Lender will make available to the Administrative Agent at its office referred to in SECTION 11.5 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent the relevant Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the 22 Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with SECTION 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Borrower will give the Administrative Agent and the Swingline Lender written notice (or oral notice promptly confirmed in writing) not later than 1:00 p.m., Charlotte time, on the Business Day of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan "Notice of Swingline Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT A-2 (or, if oral notice is given, shall be promptly followed with a minimum writing in the form of EXHIBIT A-2) and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and and, if greater, shall be in an integral multiple of $250,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 3:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at its office referred to in SECTION 11.5 (if anyor at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual SECTION 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrower to, the Collateral Manager, on behalf of the Borrower, may deliver cause a Borrowing Request of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is different from the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the first or second Borrower), not later than 1:00 p.m., Charlotte time, one (1) Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as ABR Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the "Refunded Swingline Loans") outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at its office referred to in SECTION 11.5 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender's ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by SECTION 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day's prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at its office referred to in SECTION 11.5 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender's participation as provided in this subsection (f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Alternate Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender's ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due subsection (e) above and each such Lender's obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to subsection (f) above shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make such Loan subject to Administrative Agent, the terms and conditions Borrower or any other Person for Loans otherwise set forth any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, or (iv) any breach of this Agreement as soon as they are reasonably able to do soby any party hereto.
Appears in 1 contract
Borrowings. If(a) The Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request Borrower and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this Agreement, except be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan); provided that (i) all Loans comprising the Borrower shall pay same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no LIBOR Loan may be borrowed at any time prior to the Lenders any lossesthird Business Day after the Restatement Effective Date.
(b) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Loans, costs or expenses incurred by which shall be made pursuant to Section 2.11), each Borrower will give the Lenders in connection with making such Loan on such proposed funding date Administrative Agent written notice not later than 11:00 a.m. three Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 10:00 a.m. on the date any interest is due under same Business Day of such LoanBorrowing of Base Rate Loans; provided, however, that requests for the Borrowing of any Loans to be made on the Restatement Effective Date may, at the discretion of the Administrative Agent, be given with less advance notice than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Tranche 1 Commitments);
(ii) if the Lenders are unable applicable Borrower shall have failed to designate the Type of Loans comprising a Borrowing, such Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then such Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) As provided in Sections 2.5(b) and 2.5(c), the Borrowers shall have the right to terminate in whole or permanently reduce ratably in part the unused Commitments of the Lenders.
(d) Not later than 1:00 p.m. on the requested Borrowing Date, each Tranche 1 Lender will make a Loan pursuant to an Expedited Borrowing Request due available to the occurrence Administrative Agent at its office referred to in Section 11.5 (or such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of a force majeurethe Loan to be made by such Tranche 1 Lender. To the extent (i) the Tranche 1 Lenders have made such amounts available to the Administrative Agent as provided hereinabove, or any other unexpected and unforeseen event, including, without limitation, market disruptions(ii) the conditions precedent in Section 4.2 are satisfied, the Lenders shall Administrative Agent will make the aggregate of such Loan subject amounts available to the terms 8470562v6 24740.00061 applicable Borrower in accordance with Section 2.3(a) and conditions for Loans otherwise set forth in this Agreement like funds as soon as they are reasonably able to do soreceived by the Administrative Agent.
Appears in 1 contract
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) [Reserved]
(b) On and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this AgreementAgreement and the CSA, except that from the Borrower shall pay Closing Date and prior to the Lenders Facility Termination Date, each Lender, severally, agrees to advance its Commitment Percentage of each Borrowing requested; provided that in no event shall a Lender be required on any lossesdate to make an advance exceeding its Available Commitment, costs or expenses incurred by the Lenders in connection with making (determined prior to giving effect to such Loan on such proposed funding date on the date advance) and no Lender shall be required to make any interest is due under such Loanadvance during a Funding Termination Event; provided, further, that if each Borrowing shall not exceed the Lenders are unable to make a Loan pursuant to an Expedited Available Borrowing Request due Amount.
(c) On any Business Day prior to the occurrence of Commitment Expiration Date (each a force majeure“Funding Date”), or any other unexpected on and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions of this Agreement and the CSA, additional amounts may be borrowed or reborrowed by the Borrower (a “Borrowing”) from the Lenders under this Agreement. The Borrower shall give the Administrative Agent and each Lender prior written notice, in substantially the form of Exhibit C hereto (a “Borrowing Notice”), not later than 2:00 p.m. (New York City time) on the date which is no less than two Business Days prior to the date of a proposed Borrowing. Such Borrowing Notice shall specify (i) the principal amount of the proposed Borrowing and (ii) the proposed Funding Date, which must be a Business Day. The Administrative Agent and each Lender may act without liability upon the basis of written, telecopied or telephonic notice believed by such party in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing by the Borrower to the Administrative Agent). The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Borrowing on behalf of the Borrower until such party receives written notice to the contrary. The Administrative Agent and each Lender shall have no duty to verify the authenticity of the signature appearing on any written Borrowing Notice.
(i) [Reserved]
(ii) Each Lender shall make its Commitment Percentage of the Borrowing available to the Administrative Agent, in immediately available funds, at the Payment Office no later than 12:00 p.m. (New York City time) on the related Funding Date.
(iii) The Administrative Agent will make the proceeds of such Borrowing available to the Borrower on the related Funding Date by causing an amount, in immediately Diamond – Loan Agreement #39705641 available funds, equal to the proceeds of all such Borrowings received by the Administrative Agent at the Payment Office or the amount funded by the Administrative Agent on behalf of the Lenders to be deposited in an account designated by the Borrower in the Borrowing Notice.
(d) Each Borrowing Notice pursuant to this Section 2.1 shall be irrevocable and the Borrower shall be bound to make a Borrowing in accordance therewith. Each Borrowing shall be made in a minimum amount of $500,000, and only one Borrowing may be made in any seven-day period.
(e) All advances related to a requested Borrowing under this Agreement shall be made by the Lenders simultaneously and proportionately to their Commitment Percentage of the Total Commitment Amount, it being understood that no Lender shall be responsible for Loans any default by any other Lender in that other Lender’s obligations to make a Borrowing requested hereunder, nor shall any Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender’s obligation to make an advance related to a Borrowing requested hereunder, and no Lender shall be obligated to make the advances related to any Borrowings required to be made by it by the terms of this Agreement in the event of a failure by any other Lender.
(f) The Borrower agrees to pay interest at the Loan Rate on the Outstanding Loan Balance of all Borrowings hereunder, until paid in full, on the dates provided in the CSA. Payments of the Borrowings hereunder shall be made as provided in the CSA and the Paying Agent shall pay to the Administrative Agent for further allocation by the Administrative Agent to the Lenders each payment in respect of the Asset Backed Loan received by the Paying Agent. Unless otherwise specified in the CSA, payments by the Administrative Agent shall be made to each Lender based on its ratable share (calculated, without giving effect to payments made on the related Payment Date as a percentage, the numerator of which is such Lender’s Outstanding Loan Balance, and the denominator of which is the Outstanding Loan Balance). Calculations by the Administrative Agent with respect to the foregoing, absent manifest error, shall be final and binding.
(i) The Administrative Agent shall keep records of each Borrowing, each Interest Accrual Period applicable thereto, the interest rate(s) applicable to each Borrowing and each payment of principal and interest thereon. Such records shall be rebuttably presumptive evidence of the subject matter thereof absent manifest error. Any Lender may request that its Commitment to the Borrower be evidenced by a Note. In such event, the Borrower shall promptly prepare, execute and deliver to such Lender a Note, payable to such Lender and otherwise appropriately completed. Thereafter, the Borrowing funded by such Lender evidenced by such Note and interest thereon shall at all times (including after any assignment pursuant to Section 8.1 be represented by a Note, payable to such Lender (or registered assigns pursuant to Section 8.1, except to the extent that such Lender (or assignee) subsequently returns any such Note for cancellation and requests that such funded Borrowings once again be evidenced as described in clauses (g)(i) of this Section 2.1. Diamond – Loan Agreement #39705641
(h) The acceptance of funds by the Borrower pursuant to this Section 2.1 in connection with a Borrowing shall be deemed to be a certification by the Borrower that the conditions specified in the CSA and this Agreement have been satisfied with respect to such Borrowing.
(i) Failure to repay principal or interest in respect of the Borrowings or Fees or any other amounts owing under this Agreement or the other Transaction Documents, or to perform any covenants or obligations hereunder or thereunder shall be subject to the remedies set forth in the CSA.
(j) It is the intention of the parties hereto that the interest on the Borrowings shall not exceed the maximum rate permissible under Applicable Law. Accordingly, anything herein or in any note to the contrary notwithstanding, in the event any interest is charged to, collected from or received from or on behalf of the Borrower by the Administrative Agent or the Lenders pursuant hereto or thereto in excess of such maximum lawful rate, then the excess of such payment over that maximum shall be applied first to the payment of amounts then due and owing by the Borrower to the Secured Parties under this Agreement as soon as they are reasonably able and the CSA (other than in respect of principal of and interest on the Borrowings) and then to do sothe reduction of the Outstanding Loan Balance of the Borrowings of the Borrower.
Appears in 1 contract
Sources: Loan Agreement (Diamond Resorts International, Inc.)
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b(a) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Each Borrowing shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to be made upon the Borrower) an ’s irrevocable notice (which may be in the form of a written Loan Notice, appropriately completed and signed by the Collateral Manager on behalf a Responsible Financial Officer of the Borrower) by electronic mail or facsimile transmission substantially to the Administrative Agent, which must be given not later than 9:00 a.m.
(i) on the Closing Date, in the form case of Annex B hereto the Term A Borrowing and (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three ii) on the date at least fifteen (315) Business Days prior to in advance of the proposed requested date of the Loanapplicable Term B Borrowing or the Term C Borrowing, as the Lenders each time it receives a Borrowing Request. Unless otherwise case may be (or such shorter period as may be agreed to by the Administrative Agent and the Required Lenders, each in their sole discretion). Each Loan Notice shall specify (A) the requested date of the Borrowing (which shall be a Business Day), (B) the principal amount of Loans to be borrowed and (C) the wiring instructions of the Borrower. The Term A Borrowing shall be in a minimum principal amount of $500,000 and shall be in an amount 60,000,000.
(not less than zerob) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request Notice for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestTerm Facility, the Administrative Agent shall promptly notify each Appropriate Lender of the Lenders amount of its Applicable Percentage under such Loan, and Term Facility of the Lenders applicable Loans. Each Appropriate Lender shall use commercially reasonable efforts make the amount of its Loan available to make such Loan the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the proposed Business Day specified in the applicable Loan Notice (or, in the case of any Borrowing on the Closing Date, directly to the account of the Borrower designated by it (or an account of another Person designated by the Borrower) in a separate funds flow or funding date direction letter provided to such Lender). Upon satisfaction of the applicable conditions set forth in Section 5.02 (and, if such Borrowing is the Expedited Borrowing Request subject initial Borrowing, Section 5.01) and receipt of all requested funds from the Lenders (other than any funds that have been wired by any Lender directly to the terms and conditions for borrowings otherwise set forth in this AgreementBorrower’s account (or an account of another Person designated by the Borrower) on the Closing Date pursuant to written instructions from the Borrower), except the Administrative Agent shall make all funds (other than any funds that have been wired by any Lender directly to the Borrower’s account (or an account of another Person designated by the Borrower) on the Closing Date pursuant to written instructions from the Borrower) so received available to the Borrower shall pay in like funds as received by the Administrative Agent by wire transfer of such funds (other than any funds that have been wired by any Lender directly to the Lenders any losses, costs Borrower’s account (or expenses incurred an account of another Person designated by the Lenders in connection with making such Loan on such proposed funding date Borrower) on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Closing Date pursuant to an Expedited Borrowing Request due written instructions from the Borrower) in accordance with instructions on the Loan Notice provided to (and reasonably acceptable to) the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, Administrative Agent by the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 1 contract
Borrowings. If, prior (i) Each request for a Revolving Loan or Swing Loan hereunder shall be made by a Notice of Borrowing from the Borrower to the Conversion DateAgent, given not later than (A) 1:00 P.M. on the Collateral Manager wishes to purchase an Asset Business Day on behalf of the Borrower for which the Approval Request has been approved pursuant proposed borrowing is requested to Section 2(bbe made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, 1:00 P.M. on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time that is three (3) Business Days prior to the proposed date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice of Borrowing shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or Eurodollar Rate Loans, and if appropriate, the Lenders each time it receives applicable Interest Period, (4) whether such Swing Loan will be a Borrowing Request. Unless otherwise agreed Base Rate Loan or LIBOR Index Loan (subject to Section 2.1(a)(ii)), (5) certification by the LendersBorrower that it has complied in all respects with Section 5.2, each all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder and (6) the account at which such requested funds should be made available. Each request for borrowing made in a Notice of Borrowing shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of $3,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than eight (8) Eurodollar Loans shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $3,000,000 and integral multiples of $1,000,000 in excess thereof. Each Swing Loan shall be in a minimum principal amount of at least $500,000 100,000 and integral multiples of $100,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall be give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 2:00 P.M. on the Purchase Price date of the AssetAgent’s receipt of notice from the Borrower) of each requested borrowing in a Notice of Borrowing by telecopy, together telex or cable (other than any Notice of Borrowing which will be funded by the Agent in accordance with any purchased accrued interest with respect thereto subsection (as specified in d)(ii) below). No later than 3:00 P.M. on the Approval Request) minus (ii) date on which a Revolving Loan borrowing is requested to be made pursuant to the balance (if any) in applicable Notice of Borrowing, each Lender will make available to the Trust Account. To Agent at the extent that more than one Lender is a party address of the Agent set forth on the signature pages hereto, each Loan shall consist in immediately available funds, its Revolving Credit Commitment Percentage of loans such borrowing requested to be made (unless such funding is to be made by the Lenders ratably Agent in accordance with their Individual subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender Maximum Funding Amounts. Each prior to the date of borrowing that such Lender at does not intend to make available to the Agent its option may make any Loan or portion of a the Revolving Loan by causing any domestic or foreign branch or Affiliate of borrowing to be made on such date, the Agent may assume that such Lender to will make such Loan amount available to the Agent as required above and may at any time cause any Loan the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 75.2 for such borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans Agent will make such funds available to the Borrower if at the account specified by the Borrower in such Notice of Borrowing.
(ii) If the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made available to the Agent by a Default Defaulting Lender and the Agent has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of made such amount available to the Borrower, may deliver a Borrowing Request the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAgent’s demand therefor, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall immediately (but in no event later than one (1) Business Day after such demand) pay such corresponding amount to the Lenders any lossesAgent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, costs or expenses incurred (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Lenders in connection with making such Loan on such proposed funding date on Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 4.1, plus (B) in each case, an amount equal to any interest is due under reasonable costs (including reasonable legal expenses) and losses incurred as a result of the failure of such Loan; provided, that if Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Lenders are unable to make Borrower may have against any Lender as a Loan pursuant to an Expedited Borrowing Request due to the occurrence result of a force majeure, or any other unexpected and unforeseen eventdefault by such Lender hereunder, including, without limitation, market disruptionsthe right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the Borrower under clause (B) above on account of such Defaulting Lender’s default.
(iii) The failure of any Lender to make the Revolving Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to be made by such other Lender on the date of any borrowing.
(iv) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on outstanding Revolving Loans which it has funded to the Agent from the date such Lender funded such Revolving Loan to, but excluding, the Lenders shall make date on which such Loan subject Lender is repaid with respect to such Revolving Loan.
(v) A request for a borrowing may not be made by telephone, unless no other means are available at the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sotime of such request.
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Borrowings. IfEach Revolving Credit Borrowing shall be made on notice given by the Borrower to the Administrative Agent not later than 1:00 p.m. (New York time) (i) one Business Day, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days, in the case of a Borrowing of Eurodollar Rate Loans, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf date of the Borrower for which proposed Borrowing. Each such notice shall be in substantially the Approval Request has been approved pursuant to Section 2(bform of Exhibit C (Form of Notice of Borrowing) and funds in (a “Notice of Borrowing”), specifying (A) the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such proposed Borrowing, (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans and (D) for each Eurodollar Rate Loan, providing the initial Interest Period or Periods thereof. Loans shall be made as Base Rate Loans unless, subject to Section 4.21 (Special Provisions Governing Eurodollar Rate Loans), the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Notwithstanding anything to the contrary contained in Section 4.10(e) (Swing Loans), if any Notice of Borrowing requests a Revolving Credit Borrowing of Base Rate Loans, the Administrative Agent (with may make a copy Swing Loan available to the Borrower) Borrower in an irrevocable notice (which may aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the corresponding proposed Borrowing shall be signed reduced accordingly by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and such Swing Loan. Each Revolving Credit Borrowing shall be in an aggregate amount (of not less than zero) equal to (i) the Purchase Price $1,000,000 or an integral multiple of the Asset, together with any purchased accrued interest with respect thereto (as specified $1,000,000 in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soexcess thereof.
Appears in 1 contract
Borrowings. If(a) The Term Loans, Revolving Loans and each Series of Incremental Term Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no LIBOR Loans (other than Term A Loans maintained as LIBOR Loans) may be borrowed at any time prior to the Conversion Datethird (3rd) Business Day after the Closing Date (or, with respect to any Incremental Term Loans, the Collateral Manager wishes third (3rd) Business Day after the applicable Incremental Term Loan Effective Date). The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to purchase an Asset on behalf make a Borrowing (other than (x) Borrowings of the Borrower for Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 1:00 p.m., Charlotte, North Carolina time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of the Term A-1 Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Once given, a Notice of Borrowing may not be revoked by the Borrower except upon payment of any amounts required under Section 2.18 to be paid as a consequence of such revocation. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed date Borrowing by facsimile transmission. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan of Term A-1 Loans shall be in a minimum the amount of the aggregate Term A-1 Loan Commitments, and the aggregate principal amount of any Borrowing of any Series of Incremental Term Loans shall be in the amount of the aggregate Incremental Term Loan Commitments applicable to such Series of Incremental Term Loans;
(ii) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof;
(iii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 2:00 p.m., Charlotte, North Carolina time, on the requested Borrowing Date (which shall be the Closing Date, in the case of the Term A-1 Loans), each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan (other than borrowings pursuant to any loan sweep product or other cash management arrangement in effect between the Borrower and the Swingline Lender, which shall be effected as provided thereunder), the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 1:00 p.m., Charlotte, North Carolina time, on the Business Day of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2 and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $200,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance (if any) requested Borrowing Date, which shall be a Business Day. Once given, a Notice of Swingline Borrowing may not be revoked by the Borrower except upon payment of any amounts required under Section 2.18 to be paid as a consequence of such revocation. Not later than 1:00 p.m., Charlotte, North Carolina time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion (and shall, within seven (7) days after any Borrowing of Swingline Loans causes the preceding paragraphaggregate outstanding principal amount thereof to exceed $2,000,000), and is hereby authorized and empowered by the Collateral ManagerBorrower to, on behalf of the Borrower, may deliver cause a Borrowing Request of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the first or second Borrower), not later than 11:00 a.m., Charlotte, North Carolina time, one (1) Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 2:00 p.m., Charlotte, North Carolina time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make such Loan subject to Administrative Agent, the terms and conditions Borrower or any other Person for Loans otherwise set forth any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, or (iv) any breach of this Agreement as soon as they are reasonably able to do soby any party hereto.
Appears in 1 contract
Borrowings. If, prior (i) Each request for borrowings hereunder shall be made by a Notice of Borrowing and Payment from the Borrower to the Conversion DateAgent, given not later than (A) 2:00 P.M. on the Collateral Manager wishes to purchase an Asset Business Day on behalf of the Borrower for which the Approval Request has been approved pursuant proposed borrowing is requested to Section 2(bbe made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, during normal business hours on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time that is three (3) Business Days prior to the proposed date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice of Borrowing and Payment shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to Eurodollar Rate Loans, and if appropriate, the applicable Interest Period, (4) whether such Swing Loans will be Base Rate Loans or LIBOR Index Loans, (5) certification by the LendersBorrower that it has complied in all respects with Section 5.2, each all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder (including, without limitation, availability under the Borrowing Base) and (6) the account at which such requested funds should be made available. Each request for borrowing made in a Notice of Borrowing and Payment shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of $1,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than eight (8) Eurodollar Loans shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $5,000,000 and integral multiples of $1,000,000 in excess thereof. Revolving Loans may be repaid and reborrowed in accordance with the provisions hereof. Each Swing Loan shall be in a minimum principal amount of at least $500,000 1,000,000 and integral multiples of $1,000,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall be give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 3:00 P.M. on the Purchase Price date of the AssetAgent's receipt of notice from the Borrower) of each requested borrowing in a Notice of Borrowing and Payment by telecopy, together telex or cable (other than any Notice of Borrowing and Payment which will be funded by the Agent in accordance with any purchased accrued interest with respect thereto subsection (as specified in d)(ii) below). No later than 4:00 P.M. on the Approval Request) minus (ii) date on which a Revolving Loan borrowing is requested to be made pursuant to the balance (if any) in applicable Notice of Borrowing and Payment, each Lender will make available to the Trust Account. To Agent at the extent that more than one Lender is a party address of the Agent set forth on the signature pages hereto, each Loan shall consist in immediately available funds, its Revolving Credit Commitment Percentage of loans such borrowing requested to be made (unless such funding is to be made by the Lenders ratably Agent in accordance with their Individual subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender Maximum Funding Amounts. Each prior to the date of borrowing that such Lender at does not intend to make available to the Agent its option may make any Loan or portion of a the Revolving Loan by causing any domestic or foreign branch or Affiliate of borrowing to be made on such date, the Agent may assume that such Lender to will make such Loan amount available to the Agent as required above and may at any time cause any Loan the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 75.2 for such borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans Agent will make such funds available to the Borrower if at the account specified by the Borrower in such Notice of Borrowing and Payment.
(ii) If the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made available to the Agent by a Default Lender (such Lender being hereinafter referred to as a "Defaulting Lender") and the Agent has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of made such amount available to the Borrower, may deliver a Borrowing Request the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAgent's demand therefor, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall immediately (but in no event later than five Business Days after such demand) pay such corresponding amount to the Lenders any lossesAgent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, costs or expenses incurred (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Lenders in connection with making such Loan on such proposed funding date on Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 4.1, plus (B) in each case, an amount equal to any interest is due under reasonable costs (including reasonable legal expenses) and losses incurred as a result of the failure of such Loan; provided, that if Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Lenders are unable to make Borrower may have against any Lender as a Loan pursuant to an Expedited Borrowing Request due to the occurrence result of a force majeure, or any other unexpected and unforeseen eventdefault by such Lender hereunder, including, without limitation, market disruptionsthe right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the Borrower under clause (B) above on account of such Defaulting Lender's default.
(iii) The failure of any Lender to make the Revolving Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to be made by such other Lender on the date of any borrowing.
(iv) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on outstanding Revolving Loans which it has funded to the Agent from the date such Lender funded such Revolving Loan to, but excluding, the Lenders shall make date on which such Loan subject Lender is repaid with respect to such Revolving Loan.
(v) A request for a borrowing may not be made by telephone, unless no other means are available at the time of such request.
(vi) Notwithstanding anything to the terms contrary contained elsewhere herein, and conditions whether or not a Default or Event of Default exists at the time, unless otherwise objected to by the Required Lenders in writing, the Agent may in its reasonable discretion require all Lenders to honor requests or deemed requests by the Borrower for Revolving Loans otherwise set forth at a time that an Overadvance exists or which would result in this Agreement an Overadvance and each Lender shall be obligated to continue to make its pro rata share of Revolving Loans, up to a maximum amount outstanding equal to its Revolving Credit Commitment, so long as soon such Overadvance is not known by the Agent to exceed $10,000,000 and so long as they are reasonably able to do sosuch Overadvance is not outstanding for more than ten (10) Business Days. No new Overadvance may be made at any time during which an existing Overadvance is outstanding.
Appears in 1 contract
Sources: Senior Secured Working Capital Credit Facility (Transmontaigne Inc)
Borrowings. If(a) Each Borrowing, prior shall be made upon the Borrower’s irrevocable notice to the Conversion DateAdministrative Agent, the Collateral Manager wishes to purchase an Asset on behalf which may be given by (A) telephone or (B) a Notice of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing Borrowing; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent (with of a copy to the Borrower) an irrevocable notice (which may Notice of Borrowing. Each such Notice of Borrowing must be signed received by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 noon three (3) Business Days prior to the proposed requested date of the Loan, the Lenders each time it receives a any Borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and 5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Notice of Borrowing shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the AssetBorrowing (which shall be a Business Day), together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance Facility to which such Borrowing relates, (if anyiii) in the Trust Account. To proposed use of proceeds with respect to such Borrowing and (iv) the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on Advances to be borrowed.
(b) Following receipt of a Notice of Borrowing, the Administrative Agent shall promptly (and in any event, no later than 11:00 a.m. two (2) Business Days prior to the requested date specified in the related of Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost applicable Notice of Borrowing) notify (which may be done electronically) each Lender of the related Assetamount of its pro rata share of the applicable Advances. The Lenders In the case of a Borrowing, each Lender shall make the amount of its Advance available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not fund any Loans later than 12:00 P.M. on the Business Day specified in the applicable Notice of Borrowing. Upon satisfaction of the applicable conditions set forth in Section 3.02 (and, if such Borrowing is made on the Restatement Effective Date, Section 3.01), the Administrative Agent shall make all funds so received available to the Borrower if in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) [Reserved].
(d) [Reserved].
(e) Unless the Administrative Agent shall have received notice from a Default has occurred and is continuing. Notwithstanding Lender prior to the preceding paragraphdate of any Borrowing that such Lender will not make available to the Administrative Agent such ▇▇▇▇▇▇’s ratable portion of such Borrowing, the Collateral Manager, on behalf of the Borrower, Administrative Agent may deliver a Borrowing Request assume that such Lender has made such portion available to the Administrative Agent on the first or second Business Day prior date of, and at the time of, such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the proposed Borrower on such date a corresponding amount; provided that the Administrative Agent shall have no obligation to make any Advance using its own funds. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the funding Borrower, the interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender, the greater of the Federal Funds Rate and a Loan (rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestoverlapping period, the Administrative Agent shall promptly notify remit to the Lenders Borrower the amount of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that interest paid by the Borrower for such period. If such Lender shall pay to the Lenders any lossesAdministrative Agent such corresponding amount, costs or expenses incurred such amount so paid shall constitute such Lender’s Advance as part of such Borrowing for all purposes. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(f) The obligations of the Lenders in connection with making such Loan hereunder to make Advances and to make payments pursuant to Section 8.05 are several and not joint. The failure of any Lender to make the Advance to be made by it as part of any Borrowing or to make any payment under Section 8.05 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such proposed funding date on date, and no Lender shall be responsible for the date failure of any interest is due under such Loan; provided, that if the Lenders are unable other Lender to make a Loan pursuant its Advance or to an Expedited Borrowing Request due make its payment under Section 8.05.
(g) If any Lender makes available to the occurrence Administrative Agent funds for any Advance to be made by such ▇▇▇▇▇▇ as provided in the provisions of a force majeurethis Article II, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject funds are not made available to the terms and Borrower by the Administrative Agent because the conditions for Loans otherwise to the applicable Advance set forth in this Agreement Article III are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as soon as they are reasonably able received from such Lender) to do sosuch Lender, without interest.
(h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Advance in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Advance in any particular place or manner.
Appears in 1 contract
Borrowings. If, prior (i) Each request for a Revolving Loan or Swing Loan hereunder shall be made by a Notice of Borrowing from the Borrower to the Conversion DateAgent, given not later than (A) 1:00 P.M. on the Collateral Manager wishes to purchase an Asset Business Day on behalf of the Borrower for which the Approval Request has been approved pursuant proposed borrowing is requested to Section 2(bbe made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, 1:00 P.M. on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time that is three (3) Business Days prior to the proposed date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice of Borrowing shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or Eurodollar Rate Loans, and if appropriate, the Lenders each time it receives applicable Interest Period, (4) whether such Swing Loan will be a Borrowing Request. Unless otherwise agreed Base Rate Loan or LIBOR Index Loan (subject to Section 2.1(a)(ii)), (5) certification by the LendersBorrower that it has complied in all respects with Section 5.2, each all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder and (6) the account at which such requested funds should be made available. Each request for borrowing made in a Notice of Borrowing shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of $3,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than eight (8) Eurodollar Loans shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $3,000,000 and integral multiples of $1,000,000 in excess thereof. Each Swing Loan shall be in a minimum principal amount of at least $500,000 100,000 and integral multiples of $100,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall be give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 2:00 P.M. on the Purchase Price date of the AssetAgent’s receipt of notice from the Borrower) of each requested borrowing in a Notice of Borrowing by telecopy, together telex or cable (other than any Notice of Borrowing which will be funded by the Agent in accordance with any purchased accrued interest with respect thereto subsection (as specified in d)(ii) below). No later than 3:00 P.M. on the Approval Request) minus (ii) date on which a Revolving Loan borrowing is requested to be made pursuant to the balance (if any) in applicable Notice of Borrowing, each Lender will make available to the Trust Account. To Agent at the extent that more than one Lender is a party address of the Agent set forth on the signature pages hereto, each Loan shall consist in immediately available funds, its Revolving Credit Commitment Percentage of loans such borrowing requested to be made (unless such funding is to be made by the Lenders ratably Agent in accordance with their Individual subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender Maximum Funding Amounts. Each prior to the date of borrowing that such Lender at does not intend to make available to the Agent its option may make any Loan or portion of a the Revolving Loan by causing any domestic or foreign branch or Affiliate of borrowing to be made on such date, the Agent may assume that such Lender to will make such Loan amount available to the Agent as required above and may at any time cause any Loan the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 75.2 for such borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans Agent will make such funds available to the Borrower if at the account specified by the Borrower in such Notice of Borrowing.
(ii) If the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made available to the Agent by a Default Defaulting Lender and the Agent has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of made such amount available to the Borrower, may deliver a Borrowing Request the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAgent’s demand therefor, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall immediately (but in no event later than one (1) Business Day after such demand) pay such corresponding amount to the Lenders any lossesAgent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, costs or expenses incurred (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Lenders in connection with making such Loan on such proposed funding date on Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 4.1, plus (B) in each case, an amount equal to any interest is due under reasonable and documented out-of-pocket costs (including reasonable and documented legal expenses) and losses incurred as a result of the failure of such Loan; provided, that if Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Lenders are unable to make Borrower may have against any Lender as a Loan pursuant to an Expedited Borrowing Request due to the occurrence result of a force majeure, or any other unexpected and unforeseen eventdefault by such Lender hereunder, including, without limitation, market disruptionsthe right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the Borrower under clause (B) above on account of such Defaulting Lender’s default.
(iii) The failure of any Lender to make the Revolving Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan on the date of such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan to be made by such other Lender on the date of any borrowing.
(iv) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on outstanding Revolving Loans which it has funded to the Agent from the date such Lender funded such Revolving Loan to, but excluding, the Lenders shall make date on which such Loan subject Lender is repaid with respect to such Revolving Loan.
(v) A request for a borrowing may not be made by telephone, unless no other means are available at the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sotime of such request.
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Borrowings. If(a) Subject to the terms and conditions hereof, on any Business Day prior to the Conversion Commitment Termination Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent Issuer (with a copy to the Borrower) an irrevocable notice (which may be signed by or the Collateral Manager on behalf of the BorrowerIssuer) by electronic mail or facsimile transmission substantially in the form of Annex B hereto may request Borrowings (together with any attachments required in connection therewith, each a “Borrowing Request”). The Administrative Agent shall notify, ) hereunder.
(b) From time to time as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior required pursuant to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction the terms of the conditions to borrowing set forth in this Section 2 and in Section 7Indenture, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Issuer (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost behalf of the related Asset. The Lenders shall not fund any Loans Issuer) may deliver to the Borrower if Revolving Credit Note Agent and the Class A-R Noteholders a Default has occurred notice (with a copy to the Trustee and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf if not the notifying party), substantially in the form of the BorrowerExhibit A hereto (each, may deliver a “Notice of Borrowing”), of a proposed Borrowing Request to the Administrative Agent no later than 5:00 p.m. (New York City time) on the first or second third Business Day prior to the proposed date Borrowing Date. Each of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestIssuer and, if applicable, the Administrative Collateral Manager agrees that any Notice of Borrowing delivered pursuant to this Section 2.1(b) shall be transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders by facsimile or electronic mail (to the facsimile number or electronic mail address, as the case may be, specified on the Revolving Credit Note Agent’s and each Class A-R Noteholder’s respective signature pages to this Agreement), shall be substantially in the form of Exhibit A hereto, and shall specify the proposed Borrowing Date (which shall be a Business Day), the amount of such proposed Borrowing and relevant wire transfer instructions. In the event any Notice of Borrowing is not transmitted to the Revolving Credit Note Agent and the Class A-R Noteholders until after 5:00 p.m. (New York City time) on a Business Day, it will be treated as having been transmitted on the following Business Day for all purposes hereunder. The Revolving Credit Note Agent shall promptly notify the Lenders Collateral Manager promptly (and in any event within one Business Day) of any change to the facsimile number or electronic mail address specified on each Class A-R Noteholder’s signature page to this Agreement to the extent that the Revolving Credit Note Agent has received notice of such Loanchange from a Class A-R Noteholder.
(c) So long as (x) the Commitment Termination Date has not occurred and (y) the conditions to funding set out in Section 3.1 have been satisfied, and the Lenders Class A-R Noteholders shall use commercially reasonable efforts make Advances to the Issuer on the Borrowing Date specified in the Notice of Borrowing (pro rata based on their respective Commitment Percentages) as follows:
(i) each Class A-R Noteholder obligated to make such Loan an Advance hereunder, no later than 12:00 p.m. (New York City time) on the proposed funding date Borrowing Date specified in the Notice of Borrowing, shall have made available to the Trustee, in immediately available funds, an amount equal to its Commitment Percentage of the Borrowing in respect of such Advance in accordance with the wire transfer instructions set forth in the Expedited Notice of Borrowing;
(ii) a Class A-R Noteholder that has elected to establish a Class A-R Prepayment Account pursuant to Section 2.5(a) shall be deemed to satisfy its obligation under clause (i) if, no later than 12:00 p.m. (New York City time) on the Borrowing Request subject Date specified in the Notice of Borrowing, such Class A-R Noteholder has cash standing to the terms and conditions for borrowings otherwise set forth credit of its Class A-R Prepayment Account in this Agreementan amount no less than its Commitment Percentage of the Borrowing in respect of such Advance; If, except that as of 12:00 p.m. (New York City time) on the Borrower shall pay Borrowing Date specified in the related Notice of Borrowing:
(A) each Class A-R Noteholder has satisfied its Advance payment obligation (either by payment to the Lenders Trustee in accordance with Section 2.1(c)(i) or deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) the Trustee shall transfer all funds received pursuant to Section 2.1(c)(i) to the Principal Collection Subaccount and (II) in the case of any lossesClass A-R Noteholder that has satisfied such obligation pursuant to Section 2.1(c)(ii), costs the Trustee shall instruct the Custodian (without consent of such Class A-R Noteholder) to transfer cash in an amount equal to such Class A-R Noteholder’s Commitment Percentage of the Borrowing in respect of such Advance from such Class A-R Prepayment Account to the Principal Collection Subaccount; or
(B) any Class A-R Noteholder has failed to satisfy its Advance payment obligation (whether by payment to the Trustee in accordance with Section 2.1(c)(i) or expenses incurred by deemed satisfaction pursuant to Section 2.1(c)(ii) above), (I) if the Lenders in connection Trustee has received funds from a Class A-R Noteholder pursuant to Section 2.1(c)(i), the Trustee shall return such funds to such Class A-R Noteholder and (II) with making respect to any funds standing to the credit of a Class A-R Prepayment Account, the Trustee shall instruct the Custodian to return such Loan on such proposed funding date funds to the related Class A-R Noteholder. For the avoidance of doubt, if with respect to any Advance, a Class A-R Noteholder has satisfied its Advance payment obligation pursuant to Section 2.1(c)(ii) but any other Class A-R Noteholder has failed to satisfy its own Advance payment obligation as of 12:00 p.m. (New York City time) on the date any interest is due under Borrowing Date, the Trustee shall not be entitled to instruct the Custodian to transfer cash from such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due Class A-R Prepayment Account to the occurrence of a force majeure, Issuer or any other unexpected Person (other than such Class A-R Noteholder as required by sub-clause (B) above) without the consent of such Class A-R Noteholder.
(d) The Issuer hereby agrees that each Class A-R Noteholder, acting in good faith, (i) is entitled to rely upon any Notice of Borrowing furnished to such Class A-R Noteholder hereunder by the Collateral Manager purporting to act on behalf of the Issuer, is genuine and unforeseen event, including, without limitation, market disruptions, the Lenders authorized and (ii) shall make such Loan subject not be liable to the terms and conditions for Loans otherwise set forth Issuer with respect to any action taken or omitted to be taken by such Class A-R Noteholder in this Agreement as soon as they are reasonably able to do sogood faith in accordance with any such Notice of Borrowing.
Appears in 1 contract
Borrowings. If(a) Each Borrowing, prior shall be made upon the Borrower’s irrevocable notice to the Conversion DateAdministrative Agent, which may be given by (A) telephone or (B) a Notice of Borrowing; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent of a 33 26203076.▇▇▇▇▇▇▇▇▇▇.8
(b) Following receipt of a Notice of Borrowing, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) Administrative Agent shall promptly (and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose byany event, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent 11:00 a.m. two (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (32) Business Days prior to the proposed requested date of Borrowing set forth in the Loan, applicable Notice of Borrowing) notify (which may be done electronically) each Lender of the Lenders each time it receives amount of its pro rata share of the applicable Advances. In the case of a Borrowing Request. Unless otherwise agreed to by the LendersBorrowing, each Loan Lender shall be in a minimum principal make the amount of $500,000 and shall be its Advance available to the Administrative Agent in an amount (immediately available funds at the Administrative Agent’s Office not less later than zero) equal to (i) 12:00 P.M. on the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as Business Day specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist applicable Notice of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such LenderBorrowing. Upon satisfaction of the applicable conditions to borrowing set forth in this Section 2 and in 3.02 (and, if such Borrowing is made on the Closing Date, Section 73.01), the Lenders Administrative Agent shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans make all funds so received available to the Borrower if in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) [Reserved].
(d) [Reserved].
(e) Unless the Administrative Agent shall have received notice from a Default has occurred and is continuing. Notwithstanding Lender prior to the preceding paragraphdate of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Collateral Manager, on behalf of the Borrower, Administrative Agent may deliver a Borrowing Request assume that such Lender has made such portion available to the Administrative Agent on the first or second Business Day prior date of, and at the time of, such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the proposed Borrower on such date a corresponding amount; provided that the Administrative Agent shall have no obligation to make any Advance using its own funds. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the funding Borrower, the interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender, the greater of the Federal Funds Rate and a Loan (rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestoverlapping period, the Administrative Agent shall promptly notify remit to the Lenders Borrower the amount of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that interest paid by the Borrower for such period. If such Lender shall pay to the Lenders any lossesAdministrative Agent such corresponding amount, costs or expenses incurred such amount so paid shall constitute such Lender’s Advance as part of such Borrowing for all purposes. Any payment by the Lenders in connection with making Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such Loan on such proposed funding date on payment to the date any interest is due under such Loan; provided, that if Administrative Agent.
(f) The obligations of the Lenders are unable hereunder to make a Loan Advances and to make payments pursuant to an Expedited Section 8.05 are several and not joint. The failure of any Lender to make the Advance to be made by it as part of any Borrowing Request due or to the occurrence of a force majeure, or make any payment under Section 8.05 on any date required hereunder shall not relieve any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Lender of its corresponding obligation to do so.so on 34 26203076.▇▇▇▇▇▇▇▇▇▇.8
Appears in 1 contract
Borrowings. If(a) The Revolving Loans shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans, LIBOR Loans or LIBOR Market Index Loans (each, a “Type” of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no Borrowing of LIBOR Loans may be made at any time prior to the Conversion third (3rd) Business Day after the Restatement Effective Date, the Collateral Manager wishes . The Swingline Loans shall be made and maintained as LIBOR Market Index Loans at all times.
(b) In order to purchase an Asset on behalf make a Borrowing (other than (w) Borrowings of the Borrower for Swingline Loans which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 11:00 a.m. on the requested Borrowing Date for each Borrowing to be comprised of Base Rate Loans or LIBOR Market Index Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Restatement Effective Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, contrary contained herein:
(i) the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum aggregate principal amount of each Borrowing (other than Borrowings of Swingline Loans which shall be made pursuant to Section 2.2(d)) shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments);
(ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of LIBOR Market Index Loans (other than Borrowings that are Swingline Loans); and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Administrative Agent at its office referred to in Section 11.4 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower not later than 3:00 p.m. on the requested Borrowing Date, in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) Borrowings for Swingline Loans will be made pursuant to the Sweep Program as long as the Sweep Program is in effect. However, upon termination of the Sweep Program, the Borrower will give the Administrative Agent and the Swingline Lender written notice not later than 11:00 a.m., Charlotte time, on the requested Borrowing Date, in order to make a Borrowing of a Swingline Loan. Each such notice (each, a “Notice of Swingline Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-2 and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at its office referred to in Section 11.4 (if anyor at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove (if the Administrative Agent is a party heretodifferent from the Swingline Lender), each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate (regardless of such Lender. Upon satisfaction whether an Event of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuingcontinuing or whether the Sweep Program is in effect) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is different from the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, on the requested Borrowing Date, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as LIBOR Market Index Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at its office referred to in Section 11.4 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the preceding paragraphcontrary, on the relevant Borrowing Date, the Collateral ManagerRefunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, may deliver Revolving Loans are not made pursuant to subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a Borrowing Request notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent on at its office referred to in Section 11.4 (or at such other location as the first or second Business Day prior Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAdministrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this subsection (f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due subsection (e) above and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to subsection (f) above shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make such Loan subject to Administrative Agent, the terms and Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement or the Sweep Program by any party hereto, (v) whether the Sweep Program is in effect or (vi) the failure of the conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Borrowings. If(a) Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable notice to Administrative Agent, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date and the Credit Extensions on the NAI-1537241654v2 Delayed Draw Funding Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of SOFR Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a SOFR Loan shall, unless Borrower Representative is notified pursuant to Section 2.17 or Section 2.27 that SOFR Loans are not available, be irrevocable on and after the Lenders related Interest Rate Determination Date, and Borrowers shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each time it receives a Lender of the proposed borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan of SOFR Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance requested date of the Borrowing (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if anyapplicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of SOFR Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower Representative fails to specify between a Base Rate Loan or a SOFR Loan in the Trust Accountapplicable Funding Notice, then the applicable Term Loans or Revolving Loans shall be made as SOFR Loans with an Interest Period of one month.
(b) Following receipt of a Funding Notice, Administrative Agent shall promptly notify each Appropriate Lender in writing or by electronic communication of the amount of its Pro Rata Share of the applicable Term Loans or Revolving Loans. To In the extent that more than one Lender is case of a party heretoTerm Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to Administrative Agent in immediately available funds at the Administrative Agent’s Principal Office not later than 2:00 p.m. on the Business Day specified in the applicable Funding Notice. Upon satisfaction or waiver of the applicable conditions precedent set forth in Section 3.02 (and, if such Borrowing is the initial Credit Extension, Section 3.01), Administrative Agent shall consist make all funds so received available to the applicable Borrower(s) either by (i) crediting the account(s) of loans made the Borrower(s) on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds to an account designated by the Lenders ratably Borrower Representative in writing, in each case, in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan instructions provided to (and reasonably acceptable to) Administrative Agent by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Representative (or the Collateral Manager on its behalfsubject to Section 2.04(c)).
(c) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower Representative and the Lenders shall use commercially reasonable efforts (in writing or by electronic communication) of the interest rate applicable to any Interest Period for SOFR Loans upon determination of such interest rate.
(d) The failure of any Lender to make such the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the proposed funding date set forth in of such Borrowing, but no Lender shall be responsible for the Expedited Borrowing Request subject failure of any other Lender to make the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay Loan to the Lenders any losses, costs or expenses incurred be made by the Lenders in connection with making such Loan on such proposed funding date other Lender on the date of any interest is due under such Loan; providedBorrowing.
(e) Anything in this Section 2.02 to the contrary notwithstanding, that the Borrower Representative may not select Adjusted Term SOFR for any Borrowing if the obligation of the Appropriate Lenders are unable to make a Loan SOFR Loans shall then be suspended pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, Section 2.17(b) or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soSection 2.27(a).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. If(a) Subject to Section 4.3, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset GFC (acting on behalf of the Borrower for which relevant Initial Borrower) shall give the Approval Request has been approved pursuant to Section 2(bFacility Agent (who shall promptly notify each Lender thereof) and funds Ex-Im Bank notice in the Trust Account are insufficient to provide for form of Exhibit A hereto of each borrowing by such purchaseBorrower hereunder (each, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date "NOTICE OF BORROWING").
(b) Following receipt of such Loan, providing to the Administrative Agent a Notice of Borrowing from GFC (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the relevant Initial Borrower), the Facility Agent shall determine the Floating Rate (for the initial Interest Period) by electronic mail or facsimile transmission substantially the Fixed Rate, as the case may be, as requested in such Notice of Borrowing, to be applicable to the relevant Loan in accordance with the respective definition thereof, [Loan Agreement] provided that, in the form case of Annex B hereto a determination of the Fixed Rate, if the Facility Agent is unable to agree the rate with GFC (together with any attachments required as provided in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3the definition of Fixed Rate) Business Days prior to the proposed date Borrowing Date for such Loan then such Loan shall initially bear interest at the Floating Rate.
(c) Upon determination of the Applicable Rate on or prior to the relevant Borrowing Date for a Loan, the Lenders each time it receives a Facility Agent shall calculate the Basic Rent and Termination Value schedules in respect of the relevant Aircraft on the basis of such Applicable Rate for such Loan, and shall submit such calculated schedules to GFC and Ex-Im Bank for approval. On the relevant Borrowing Request. Unless otherwise agreed to by the LendersDate, each Loan shall be in a minimum principal amount of $500,000 Lender shall, subject to Section 2.1 and shall be in an amount (not less than zero) equal subject further to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing precedent set forth in this Section 2 and in Section 77(a), make available to the Lenders shall advance Facility Agent its Designated Percentage of the applicable principal amount of each the Loan on to be made, at an account to be designated by the date specified Facility Agent with Barclays Bank PLC, New York, New York, or to such other account in New York, New York as the related Borrowing Request Facility Agent may specify for such purpose, in Dollars and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction immediately available funds, for account of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Assetrelevant Borrower. The Lenders shall not fund any Loans to aggregate amount so received by the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphFacility Agent shall, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this AgreementAgreement and the other Operative Documents, except that the Borrower shall pay be made available to the Lenders any lossesInitial Borrower of the relevant Loan by depositing the same, costs or expenses incurred by in immediately available funds, in the Designated Account. Without prejudice to the last sentence of Section 2.1, (a) the obligations of the Lenders in connection with making hereunder are the several obligations of each Lender and not joint and several obligations, and (b) no Lender shall have any liability to any Borrower, any Guarantor or any Lessee for the failure of any other Lender to advance its portion of any Loan hereunder. The Facility Agent shall have no such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if liability. The rights of the Lenders hereunder and under the other Operative Documents are unable several. Any amount at any time owing by a Borrower to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, any party hereto under this Agreement or any other unexpected Operative Document shall be a separate and unforeseen event, including, without limitation, market disruptions, independent debt from the Lenders shall make such Loan subject amount owing to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soany other party hereto.
Appears in 1 contract
Sources: Loan Agreement (Gatx Financial Corp)
Borrowings. IfTo request a Revolving Borrowing, prior the Administrative Borrower shall deliver, by hand delivery or telecopier, a duly completed and executed Borrowing Request to the Conversion Dateapplicable Administrative Agent (i) in the case of a Eurodollar Borrowing in dollars or a Bankers’ Acceptance, not later than 11:00 a.m., New York City time, three Business Days before the Collateral Manager wishes to purchase an Asset on behalf date of the Borrower for which the Approval Request has been approved pursuant to Section 2(bproposed Borrowing, (ii) and funds in the Trust Account are insufficient to provide for such purchasecase of an ABR Borrowing, the Collateral Manager shall request a Loan for such purpose by, no not later than noon9:00 a.m., New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, proposed Borrowing or (iii) in the Lenders each time it receives case of a Borrowing Requestof Canadian Prime Rate Loans, not later than 11:00 a.m., New York time, one Business Day before the date of the proposed Borrowing. Unless otherwise agreed to by the Lenders, each Loan Each Borrowing Request shall be in a minimum principal amount of $500,000 irrevocable and shall be specify the following information in an amount (not less than zero) equal to compliance with Section 2.02:
(i) the Purchase Price aggregate amount and Approved Currency of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus such Borrowing;
(ii) the balance date of such Borrowing, which shall be a Business Day;
(if anyiii) for US Revolving Loans, whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing or, for Canadian Revolving Loans, whether such Borrowing is to be by way of Bankers’ Acceptance or Canadian Prime Rate Loan;
(iv) in the Trust Account. To case of a Eurodollar Borrowing or a Bankers’ Acceptance, the extent that more than one Lender is initial Interest Period to be applicable thereto, which shall be a party hereto, each Loan shall consist of loans made period contemplated by the Lenders ratably definition of the term “Interest Period”;
(v) the name of the applicable Borrower and the location and number of the applicable Borrower’s account to which funds are to be disbursed, which shall comply with the requirements of Section 2.02(c); and
(vi) that the conditions set forth in Section 4.02(b) – (e) have been satisfied as of the date of the notice. If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing in dollars or, in the case of a Canadian Revolving Loan in Canadian dollars, a Canadian Prime Rate Loan. If no Interest Period is specified with respect to any requested Eurodollar Borrowing or Bankers’ Acceptance then the applicable Borrower shall be deemed to have selected an Interest Period of one month’s duration. Promptly following receipt of a Borrowing Request in accordance with their Individual this Section, such Administrative Agent shall advise each applicable Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate the details thereof and of the amount of such Lender to make such Loan and may at any time cause any Lender’s Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction made as part of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sorequested Borrowing.
Appears in 1 contract
Borrowings. If(a) The Revolving Loans shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans, LIBOR Loans or LIBOR Market Index Loans (each, a “Type” of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no Borrowing of LIBOR Loans may be made at any time prior to the Conversion third (3rd) Business Day after the Restatement Effective Date, the Collateral Manager wishes . The Swingline Loans shall be made and maintained as LIBOR Market Index Loans at all times.
(b) In order to purchase an Asset on behalf make a Borrowing (other than (x) Borrowings of the Borrower for Swingline Loans which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 11:00 a.m. on the requested Borrowing Date for each Borrowing to be comprised of Base Rate Loans or LIBOR Market Index Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Restatement Effective Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, contrary contained herein:
(i) the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum aggregate principal amount of each Borrowing (other than Borrowings of Swingline Loans which shall be made pursuant to Section 2.2(d)) shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments);
(ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of LIBOR Market Index Loans; and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Administrative Agent at its office referred to in Section 11.5 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower not later than 3:00 p.m. on the requested Borrowing Date, in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) Borrowings for Swingline Loans will be made pursuant to the Sweep Program as long as the Sweep Program is in effect. However, upon termination of the Sweep Program, the Borrower will give the Administrative Agent and the Swingline Lender written notice not later than 11:00 a.m., Charlotte time, on the requested Borrowing Date, in order to make a Borrowing of a Swingline Loan. Each such notice (each, a “Notice of Swingline Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-2 and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at its office referred to in Section 11.5 (if anyor at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove (if the Administrative Agent is a party heretodifferent from the Swingline Lender), each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate (regardless of such Lender. Upon satisfaction whether an Event of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuingcontinuing or whether the Sweep Program is in effect) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is different from the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, on the requested Borrowing Date, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as LIBOR Market Index Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at its office referred to in Section 11.5 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the preceding paragraphcontrary, on the relevant Borrowing Date, the Collateral ManagerRefunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, may deliver Revolving Loans are not made pursuant to subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a Borrowing Request notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent on at its office referred to in Section 11.5 (or at such other location as the first or second Business Day prior Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAdministrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this subsection (f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due subsection (e) above and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to subsection (f) above shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make such Loan subject to Administrative Agent, the terms and conditions Borrower or any other Person for Loans otherwise set forth any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement as soon as they are reasonably able to do soor the Sweep Program by any party hereto or (v) whether the Sweep Program is in effect.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Borrowings. IfEach Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable notice to Administrative Agent, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date and the Credit Extensions on the Delayed Draw Funding Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of LIBOR Rate Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans; provided, however, that if the Borrower Representative wishes to request LIBOR Rate Loans having an Interest Period other than one, two, three or six months in duration as provided in the definition of “Interest Period,” the applicable notice must be received by Administrative Agent not later than 12:00 p.m., five (5) Business Days prior to the requested date of such Borrowing, whereupon Administrative Agent shall give prompt notice to the applicable Lenders each time it receives a Borrowing Request. Unless otherwise agreed of such request and determine whether the requested Interest Period is acceptable to all of them, thereafter Administrative Agent shall notify the Borrower Representative (which notice may be by telephone) whether or not the requested Interest Period has been consented to by such Lenders. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall, unless Borrower Representative is notified pursuant to Section 2.17 or Section 2.27 that LIBOR Rate Loans are not available, be irrevocable on and after the Lendersrelated Interest Rate Determination Date, and Borrowers shall be DOC ID - 36220401.1 bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Loan Lender of the proposed borrowing. Each Borrowing of LIBOR Rate Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction requested date of the conditions to borrowing set forth in this Section 2 and in Section 7Borrowing (which shall be a Business Day), (iii) the Lenders shall advance the applicable principal amount of each Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of LIBOR Rate Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower Representative fails to specify between a Base Rate Loan on the date specified or a LIBOR Rate Loan in the related Borrowing Request and applicable Funding Notice, then the proceeds thereof applicable Term Loans or Revolving Loans shall be paid into the Trust Account or otherwise at the direction made as LIBOR Rate Loans with an Interest Period of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soone month.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. If, prior (i) Each request for a Revolving or Swing Loan hereunder shall be made by a Notice of Borrowing from the Borrower to the Conversion DateAgent, given not later than (A) 2:00 P.M. on the Collateral Manager wishes to purchase an Asset Business Day on behalf of the Borrower for which the Approval Request has been approved pursuant proposed borrowing is requested to Section 2(bbe made for Revolving Loans that will be Base Rate Loans and for Swing Loans and (B) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, during normal business hours on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time that is three (3) Business Days prior to the proposed date of the requested borrowing of Revolving Loans that will be Eurodollar Loans. Each request for borrowing made in a Notice of Borrowing shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing and whether it is for a Revolving Loan or Swing Loan, (3) whether such Revolving Loans will be Base Rate Loans or Eurodollar Rate Loans, and if appropriate, the Lenders each time it receives applicable Interest Period, (4) whether such Swing Loan will be a Borrowing Request. Unless otherwise agreed Base Rate Loan or LIBOR Index Loan (subject to Section 2.1(a)(ii)), (5) certification by the LendersBorrower that it has complied in all respects with Section 5.3, each all of which shall be specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder and (6) the account at which such requested funds should be made available. Each request for borrowing made in a Notice of Borrowing shall be irrevocable by and binding on the Borrower. The Borrower shall be entitled to borrow Revolving Loans in a minimum principal amount of $3,000,000 and integral multiples of $1,000,000 in excess thereof (or the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than six (6) Eurodollar Loans (including Term Loans which are Eurodollar Loans) shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in a minimum principal amount of at least $3,000,000 and integral multiples of $1,000,000 in excess thereof. Each Swing Loan shall be in a minimum principal amount of at least $500,000 100,000 and integral multiples of $100,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall be give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 3:00 P.M. on the Purchase Price date of the AssetAgent’s receipt of notice from the Borrower) of each requested borrowing in a Notice of Borrowing by telecopy, together telex or cable (other than any Notice of Borrowing which will be funded by the Agent in accordance with any purchased accrued interest with respect thereto subsection (as specified in d)(ii) below). No later than 4:00 P.M. on the Approval Request) minus (ii) date on which a Revolving Loan borrowing is requested to be made pursuant to the balance (if any) in applicable Notice of Borrowing, each Lender will make available to the Trust Account. To Agent at the extent that more than one Lender is a party address of the Agent set forth on the signature pages hereto, each Loan shall consist in immediately available funds, its Revolving Credit Commitment Percentage of loans such borrowing requested to be made (unless such funding is to be made by the Lenders ratably Agent in accordance with their Individual subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender Maximum Funding Amounts. Each prior to the date of borrowing that such Lender at does not intend to make available to the Agent its option may make any Loan or portion of a the Revolving Loan by causing any domestic or foreign branch or Affiliate of borrowing to be made on such date, the Agent may assume that such Lender to will make such Loan amount available to the Agent as required above and may at any time cause any Loan the Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 75.3 for such borrowing, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans Agent will make such funds available to the Borrower if at the account specified by the Borrower in such Notice of Borrowing.
(ii) If the amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 or the amounts of Term Loans described in subsection (d)(vi) of this Section 2.1 are not in fact made available to the Agent by a Default Lender (such Lender being hereinafter referred to as a “Defaulting Lender”) and the Agent has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of made such amount available to the Borrower, may deliver a Borrowing Request the Agent shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAgent’s demand therefor, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall immediately (but in no event later than five Business Days after such demand) pay such corresponding amount to the Lenders any lossesAgent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, costs or expenses incurred (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Lenders in connection with making such Loan on such proposed funding date on Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section 4.1, plus (B) in each case, an amount equal to any interest is due under reasonable costs (including reasonable legal expenses) and losses incurred as a result of the failure of such Loan; provided, that if Defaulting Lender to provide such amount as provided in this Credit Agreement. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Lenders are unable to make Borrower may have against any Lender as a Loan pursuant to an Expedited Borrowing Request due to the occurrence result of a force majeure, or any other unexpected and unforeseen eventdefault by such Lender hereunder, including, without limitation, market disruptionsthe right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the Borrower under clause (B) above on account of such Defaulting Lender’s default.
(iii) The failure of any Lender to make the Revolving Loan or Term Loan to be made by it as part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Revolving Loan or Term Loan on the date of such borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Loan or Term Loan to be made by such other Lender on the date of any borrowing.
(iv) Each Lender shall be entitled to earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on outstanding Revolving Loans and Term Loans which it has funded to the Agent from the date such Lender funded such Revolving Loan or Term Loan to, but excluding, the date on which such Lender is repaid with respect to such Revolving Loan or Term Loan.
(v) A request for a borrowing may not be made by telephone, unless no other means are available at the time of such request.
(vi) The full amount of the Term Loans shall be disbursed without further request of the Borrower on the Funding Date as Base Rate Loans (subject, in all events, to the closing conditions contained in Article V). Each Lender shall make the amount of its Term Loan Commitment Percentage of the Term Committed Amount available to the Agent for the account of the Borrower at the address of the Agent set forth on the signature pages hereto, by 1:00 P.M. on the Funding Date and in funds immediately available to the Agent. The Term Loan Commitments of the Lenders shall make such automatically terminate at the close of business on the Funding Date. Once a portion of the Term Loan subject to is repaid, it cannot be reborrowed. Each Eurodollar Loan or Base Rate Loan that is part of the terms Term Loans shall be in an aggregate principal amount that is not less than $3,000,000 and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do sointegral multiples of $1,000,000 (or the then remaining principal balance of the Term Loans, if less).
Appears in 1 contract
Sources: Senior Secured Credit Facility (TransMontaigne Partners L.P.)
Borrowings. If(a) Subject to Section 4.3, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset GFC (acting on behalf of the Borrower for which relevant Initial Borrower) shall give the Approval Request has been approved pursuant to Section 2(bFacility Agent (who shall promptly notify each Lender thereof) and funds Ex-Im Bank notice in the Trust Account are insufficient to provide for form of Exhibit A hereto of each borrowing by such purchaseBorrower hereunder (each, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date "NOTICE OF BORROWING").
(b) Following receipt of such Loan, providing to the Administrative Agent a Notice of Borrowing from GFC (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the relevant Initial Borrower), the Facility Agent shall determine the Floating Rate (for the initial Interest Period) by electronic mail or facsimile transmission substantially the Fixed Rate, as the case may be, as requested in such Notice of Borrowing, to be applicable to the relevant Loan in accordance with the respective definition thereof, 2 <PAGE> [Loan Agreement] provided that, in the form case of Annex B hereto a determination of the Fixed Rate, if the Facility Agent is unable to agree the rate with GFC (together with any attachments required as provided in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3the definition of Fixed Rate) Business Days prior to the proposed date Borrowing Date for such Loan then such Loan shall initially bear interest at the Floating Rate.
(c) Upon determination of the Applicable Rate on or prior to the relevant Borrowing Date for a Loan, the Lenders each time it receives a Facility Agent shall calculate the Basic Rent and Termination Value schedules in respect of the relevant Aircraft on the basis of such Applicable Rate for such Loan, and shall submit such calculated schedules to GFC and Ex-Im Bank for approval. On the relevant Borrowing Request. Unless otherwise agreed to by the LendersDate, each Loan shall be in a minimum principal amount of $500,000 Lender shall, subject to Section 2.1 and shall be in an amount (not less than zero) equal subject further to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing precedent set forth in this Section 2 and in Section 77(a), make available to the Lenders shall advance Facility Agent its Designated Percentage of the applicable principal amount of each the Loan on to be made, at an account to be designated by the date specified Facility Agent with Barclays Bank PLC, New York, New York, or to such other account in New York, New York as the related Borrowing Request Facility Agent may specify for such purpose, in Dollars and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction immediately available funds, for account of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Assetrelevant Borrower. The Lenders shall not fund any Loans to aggregate amount so received by the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphFacility Agent shall, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this AgreementAgreement and the other Operative Documents, except that the Borrower shall pay be made available to the Lenders any lossesInitial Borrower of the relevant Loan by depositing the same, costs or expenses incurred by in immediately available funds, in the Designated Account. Without prejudice to the last sentence of Section 2.1, (a) the obligations of the Lenders in connection with making hereunder are the several obligations of each Lender and not joint and several obligations, and (b) no Lender shall have any liability to any Borrower, any Guarantor or any Lessee for the failure of any other Lender to advance its portion of any Loan hereunder. The Facility Agent shall have no such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if liability. The rights of the Lenders hereunder and under the other Operative Documents are unable several. Any amount at any time owing by a Borrower to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, any party hereto under this Agreement or any other unexpected Operative Document shall be a separate and unforeseen event, including, without limitation, market disruptions, independent debt from the Lenders shall make such Loan subject amount owing to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soany other party hereto.
Appears in 1 contract
Sources: Loan Agreement
Borrowings. If(a) Each Borrowing, prior shall be made upon the Borrower’s irrevocable notice to the Conversion DateAdministrative Agent, the Collateral Manager wishes to purchase an Asset on behalf which may be given by (A) telephone or (B) a Notice of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing Borrowing; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent (with of a copy to the Borrower) an irrevocable notice (which may Notice of Borrowing. Each such Notice of Borrowing must be signed received by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 noon three (3) Business Days prior to the proposed requested date of the Loan, the Lenders each time it receives a any Borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and 5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Notice of Borrowing shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the AssetBorrowing (which shall be a Business Day), together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance Facility to which such Borrowing relates, (if anyiii) the proposed use of proceeds with respect to such Borrowing and (iv) the principal amount of Advances to be borrowed.
(b) Following receipt of a Notice of Borrowing, the Administrative Agent shall promptly (and in any event, no later than 11:00 a.m. two (2) Business Days prior to the requested date of Borrowing set forth in the Trust Accountapplicable Notice of Borrowing) notify (which may be done electronically) each Lender of the amount of its pro rata share of the applicable Advances. To In the extent that more than one Lender is case of a party heretoBorrowing, each Loan Lender shall consist make the amount of loans made by its Advance available to the Lenders ratably Administrative Agent in accordance with their Individual Lender Maximum Funding Amounts. Each Lender immediately available funds at its option may make any Loan or portion the Administrative Agent’s Office not later than 12:00 P.M. on the Business Day specified in the applicable Notice of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such LenderBorrowing. Upon satisfaction of the applicable conditions to borrowing set forth in this Section 2 and in 3.02 (and, if such Borrowing is made on the Closing Date, Section 73.01), the Lenders Administrative Agent shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans make all funds so received available to the Borrower if in like funds as received by the Administrative Agent by wire transfer of such funds in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower.
(c) [Reserved].
(d) [Reserved].
(e) Unless the Administrative Agent shall have received notice from a Default has occurred and is continuing. Notwithstanding Lender prior to the preceding paragraphdate of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s ratable portion of such Borrowing, the Collateral Manager, on behalf of the Borrower, Administrative Agent may deliver a Borrowing Request assume that such Lender has made such portion available to the Administrative Agent on the first or second Business Day prior date of, and at the time of, such Borrowing in accordance with subsection (a) of this Section 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to the proposed Borrower on such date a corresponding amount; provided that the Administrative Agent shall have no obligation to make any Advance using its own funds. If and to the extent that such Lender shall not have so made such ratable portion available to the Administrative Agent, such Lender and the Borrower severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds and to pay interest thereon, for each day from the date such amount is made available to the Borrower until the date such amount is repaid or paid to the Administrative Agent, at (i) in the case of the funding Borrower, the interest rate applicable at such time under Section 2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender, the greater of the Federal Funds Rate and a Loan (rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestoverlapping period, the Administrative Agent shall promptly notify remit to the Lenders Borrower the amount of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that interest paid by the Borrower for such period. If such Lender shall pay to the Lenders any lossesAdministrative Agent such corresponding amount, costs or expenses incurred such amount so paid shall constitute such Lender’s Advance as part of such Borrowing for all purposes. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.
(f) The obligations of the Lenders in connection with making such Loan hereunder to make Advances and to make payments pursuant to Section 8.05 are several and not joint. The failure of any Lender to make the Advance to be made by it as part of any Borrowing or to make any payment under Section 8.05 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such proposed funding date on date, and no Lender shall be responsible for the date failure of any interest is due under such Loan; provided, that if the Lenders are unable other Lender to make a Loan pursuant its Advance or to an Expedited Borrowing Request due make its payment under Section 8.05.
(g) If any Lender makes available to the occurrence Administrative Agent funds for any Advance to be made by such Lender as provided in the provisions of a force majeurethis Article II, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject funds are not made available to the terms and Borrower by the Administrative Agent because the conditions for Loans otherwise to the applicable Advance set forth in this Agreement Article III are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as soon as they are reasonably able received from such Lender) to do sosuch Lender, without interest.
(h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Advance in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Advance in any particular place or manner.
Appears in 1 contract
Borrowings. If, prior to (a) Each Borrowing shall be made upon the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing Borrower’s irrevocable notice to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (of such Borrowing, which may be signed given by telephone. Each such notice must be received by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. 12:00 noon (New York, New York City time time) three (3) Business Days prior before the requested date of such Borrowing. Each telephonic notice by the Borrower pursuant to this Section 2.02(a) must be confirmed promptly by delivery to the proposed date Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Loan, Borrower. Each Borrowing (other than the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by requested and made on the Lenders, each Loan Effective Date) shall be in a minimum principal amount of $1,000,000 or a whole multiple of $500,000 and in excess thereof. Each Loan Notice shall be in an amount (not less than zero) equal to specify, as applicable, (i) that the Purchase Price of the AssetBorrower is requesting a Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance requested date of the Borrowing (if anywhich shall be a Business Day), and (iii) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist principal amount of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Loans to be borrowed.
(b) Following receipt of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestNotice, the Administrative Agent shall promptly notify each Lender of the Lenders amount of its Pro Rata Share of the applicable Loans. In the case of each Borrowing, each Lender shall make (or cause its Applicable Lending Office to make) the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon satisfaction of the applicable conditions set forth in Section 4.02, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower on the books of the Administrative Agent with the amount of such Loanfunds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Lenders shall use commercially reasonable efforts Administrative Agent by the Borrower.
(c) The failure of any Lender to make such the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the proposed funding date set forth in of such Borrowing, but no Lender shall be responsible for the Expedited Borrowing Request subject failure of any other Lender to make the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay Loan to the Lenders any losses, costs or expenses incurred be made by the Lenders in connection with making such Loan on such proposed funding date other Lender on the date of any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrowing.
Appears in 1 contract
Sources: Credit Agreement (Geokinetics Inc)
Borrowings. If(a) The Revolving Loans shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Revolving Loan), provided that (i) all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type and (ii) no Borrowing of LIBOR Loans may be made at any time prior to the Conversion third (3rd) Business Day after the Closing Date. The Swingline Loans shall be Base Rate Loans at all times.
(b) In order to make a Borrowing of Revolving Loans (other than Borrowings for the purpose of repaying Refunded Swingline Loans, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved shall be made pursuant to Section 2(b) 2.2(d), and funds in the Trust Account are insufficient other than Borrowings involving continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to provide for such purchaseSection 2.10), the Collateral Manager shall request a Loan for such purpose by, no Borrower will give the Agent written notice not later than 12:00 noon, New York City Charlotte time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and on the intended date of each Borrowing to be comprised of Base Rate Loans; provided, however, that a request for a Borrowing to be made on the Closing Date may, at the discretion of the Agent, be given later than the time specified therefor as set forth hereinabove. Each such notice (each, a "Notice of Revolving Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (x) the aggregate principal amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (z) the requested Borrowing Date, which shall be a Business Day. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, if less, in the amount of the Aggregate Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of Revolving Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. Upon its receipt of a Notice of Revolving Borrowing, the Agent will promptly notify each Lender of the proposed date Borrowing. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Agent at its office referred to in Section 11.5 (or at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Agent.
(c) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Borrower will give the Agent and the Swingline Lender written notice (or oral notice promptly confirmed in writing) not later than 12:00 noon, Charlotte time, on the Business Day of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan "Notice of Swingline Borrowing") shall be irrevocable, shall be given in the form of Exhibit B-2 (or, if oral notice is given, shall be promptly followed with a minimum writing in the form of Exhibit B-2) and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 50,000 and, if greater, shall be in an integral multiple of $10,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Agent at its office referred to in Section 11.5 (if anyor at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Agent.
(d) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan (without regard to be transferred to any domestic or foreign branch or Affiliate whether an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Agent and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, on the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Revolving Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans and shall remain as Base Rate Loans until repaid or converted into LIBOR Loans pursuant to the terms of this Agreement) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the "Refunded Swingline Loans") outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Agent at its office referred to in Section 11.5 (or at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the preceding paragraphcontrary, on the relevant Borrowing Date, the Collateral ManagerRefunded Swingline Loans (including the Swingline Lender's ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the BorrowerBorrower from the Swingline Lender in any bankruptcy, may deliver a Borrowing Request to insolvency or similar proceeding or otherwise, the Administrative Agent on the first or second Business Day prior to the proposed date loss of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent amount so recovered shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by be shared ratably among all the Lenders in connection the manner contemplated by Section 2.14(b).
(e) If, as a result of any bankruptcy, insolvency or similar proceeding with making respect to the Borrower, Revolving Loans are not made pursuant to subsection (d) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall
(1) Business Day's prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Agent at its office referred to in Section 11.5 (or at such Loan other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Agent. In the event any such Lender fails to make available to the Agent the amount of such Lender's participation as provided in this subsection (e), the Swingline Lender shall be entitled to recover such amount on demand from such proposed funding date on Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate. Promptly following its receipt of any interest is due under payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Loan; providedLender's ratable share of such payment.
(f) Notwithstanding any provision of this Agreement to the contrary, that if the Lenders are unable obligation of each Lender (other than the Swingline Lender) to make a Loan Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to an Expedited Borrowing Request due subsection (d) above and each such Lender's obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to subsection (e) above shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, or (iv) any breach of this Agreement by any party hereto; provided, however, that no Lender shall have any obligation to make a Revolving Loan for the purpose of repaying, or to purchase any participation in, any Swingline Loan if, at the time of making such Swingline Loan, the Swingline Lender had actual knowledge that the conditions to making such Swingline Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soherein were not satisfied or waived.
Appears in 1 contract
Sources: Credit Agreement (Movie Gallery Inc)
Borrowings. If(a) Each Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable (provided, that any such notice may state that it is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower Representative by notice to the Administrative Agent on or prior to the Conversion Datespecified effective date if such condition is not satisfied) notice to Administrative Agent, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of SOFR Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the Lenders each time it receives a proposed borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan of SOFR Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance requested date of the Borrowing (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if anyapplicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of SOFR Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower Representative fails to specify between a Base Rate Loan or a SOFR Loan in the Trust Accountapplicable Funding Notice, then the applicable Term Loans or Revolving Loans shall be made as SOFR Loans with an Interest Period of one month.
(b) Following receipt of a Funding Notice, Administrative Agent shall promptly notify each Appropriate Lender in writing or by electronic communication of the amount of its Pro Rata Share of the applicable Term Loans or Revolving Loans. To In the extent that more than one Lender is case of a party heretoTerm Borrowing or a Revolving Credit Borrowing, each Appropriate Lender shall make the amount of its Loan available to Administrative Agent in immediately available funds at the Administrative Agent’s Principal Office not later than 2:00 p.m. on the Business Day specified in the applicable Funding Notice. Upon satisfaction or waiver of the applicable conditions precedent set forth in Section 3.02 (and, if such Borrowing is the initial Credit Extension, Section 3.01), Administrative Agent shall consist make all funds so received available to the applicable Borrower(s) either by (i) crediting the account(s) of loans made the Borrower(s) on the books of Administrative Agent with the amount of such funds or (ii) wire transfer of such funds to an account designated by the Lenders ratably Borrower Representative in writing, in each case, in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan instructions provided to (and reasonably acceptable to) Administrative Agent by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower Representative (or the Collateral Manager on its behalfsubject to Section 2.04(c)).
(c) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, Borrower Representative and the Lenders shall use commercially reasonable efforts (in writing or by electronic communication) of the interest rate applicable to any Interest Period for SOFR Loans upon determination of such interest rate.
(d) The failure of any Lender to make such the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the proposed funding date set forth in of such Borrowing, but no Lender shall be responsible for the Expedited Borrowing Request subject failure of any other Lender to make the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay Loan to the Lenders any losses, costs or expenses incurred be made by the Lenders in connection with making such Loan on such proposed funding date other Lender on the date of any interest is due under such Loan; providedBorrowing.
(e) Anything in this Section 2.02 to the contrary notwithstanding, that the Borrower Representative may not select Term SOFR for any Borrowing if the obligation of the Appropriate Lenders are unable to make a Loan SOFR Loans shall then be suspended pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, Section 2.17(b) or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soSection 2.27(a).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. If(a) Each Borrowing, prior shall be made upon the Borrower’s irrevocable notice to the Conversion DateAdministrative Agent, the Collateral Manager wishes to purchase an Asset on behalf which may be given by (A) telephone or (B) a Notice of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing Borrowing; provided that any telephonic notice must be confirmed immediately by delivery to the Administrative Agent (with of a copy to the Borrower) an irrevocable notice (which may Notice of Borrowing. Each such Notice of Borrowing must be signed received by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 12:00 noon three (3) Business Days prior to the proposed requested date of the Loan, the Lenders each time it receives a any Borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and 5,000,000 or a whole multiple of $1,000,000 in excess thereof. Each Notice of Borrowing shall be in an amount (not less than zero) equal to specify (i) the Purchase Price requested date of the AssetBorrowing (which shall be a Business Day), together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance Facility to which such Borrowing relates, (if anyiii) in the Trust Account. To proposed use of proceeds with respect to such Borrowing and (iv) the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall Advances to be paid into the Trust Account or otherwise at the direction of the Borrower borrowed.
(or the Collateral Manager on its behalfb) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding Following receipt of a Loan (an “Expedited Borrowing Request”). Upon receipt Notice of an Expedited Borrowing RequestBorrowing, the Administrative Agent shall promptly notify (and in any event, no later than 11:00 a.m. two (2) Business Days prior to the Lenders requested date of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date Borrowing set forth in the Expedited Borrowing Request subject applicable Notice of Borrowing) notify (which may be done electronically) each Lender of the amount of its pro rata share of the applicable Advances. In the case of a Borrowing, each Lender shall make the amount of its Advance available to the terms and Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 12:00 P.M. on the Business Day specified in the applicable Notice of Borrowing. Upon satisfaction of the applicable conditions for borrowings otherwise set forth in this AgreementSection 3.02 (and, except that if such Borrowing is made on the Closing Date, Section 3.01), the Administrative Agent shall make all funds so received available to the Borrower shall pay to the Lenders any losses, costs or expenses incurred in like funds as received by the Lenders Administrative Agent by wire transfer of such funds in connection accordance with making such Loan on such proposed funding date on instructions provided to (and reasonably acceptable to) the date any interest is due under such Loan; provided, that if Administrative Agent by the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soBorrower.
Appears in 1 contract
Borrowings. If(a) Each Borrowing of LIBOR Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which shall be given by a Loan Notice. Each such Loan Notice must be received by the Administrative Agent not later than 11:00 a.m. five Business Days prior to the Conversion Date, Closing Date (or such shorter time as may be acceptable to the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(bAdministrative Agent). The Loan Notice shall specify (i) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date Closing Date (which shall be a Business Day), (ii) the principal amount of such LoanLIBOR Loans to be borrowed, providing (iii) an irrevocable instruction to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager transfer, on behalf of the Borrower) by electronic mail or facsimile transmission substantially , to a Dollar-denominated account of each Reference Creditor established with a financial institution in Peru acceptable to the Administrative Agent, as specified in the form of Annex B hereto (together with any attachments required in connection therewithLoan Notice, a portion of the proceeds of such Borrowing in an amount not to exceed the portion of the Reference Indebtedness payable to such Reference Creditor (the amount of such portion identified as “Reference Indebtedness” opposite the name of such Reference Creditor in Schedule 1.01-I), on account of prepayment by the Borrower of the Reference Indebtedness and (iv) the account or accounts of the Borrower into which the funding of the remaining proceeds of the requested Borrowing Request”)should be made.
(b) Following receipt of a Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage of the Loans. Each Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 10:00 a.m. on the Closing Date. Upon satisfaction of the applicable conditions set forth in Section 4.01, the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) with respect to any portion of the proceeds of the Borrowing used to repay Reference Indebtedness, by wire transfer of such funds, or (ii) with respect to any other portion of the proceeds of the Borrowing, by crediting the account of the Borrower on the books of the Administrative Agent with the amount of such funds or by wire transfer of such funds, in any case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower in the Loan Notice.
(c) The Administrative Agent shall notifypromptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for LIBOR Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, as soon as reasonably practical but the Administrative Agent shall notify the Borrower and the Lenders of any change in no event later than 5:00 p.m. New York City time three Banco de Crédito del Perú’s prime rate used in determining the Base Rate promptly following the public announcement of such change.
(3d) Business Days prior There shall be a single Borrowing of the Loans, which shall be made subject to the proposed date satisfaction of the Loanconditions set forth under Section 4.1, on the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount Closing Date.
(not less than zeroe) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate Lending Office of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, however, that if the Lenders are unable exercise of such option shall not affect the obligation of the Borrower to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make repay such Loan subject to in accordance with the terms and conditions for Loans otherwise set forth in of this Agreement as soon as they are reasonably able to do soAgreement.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Buenaventura Mining Co Inc)
Borrowings. If, prior Subject to the Conversion DateSection 4.3, the Collateral Manager wishes to purchase an Asset on behalf Borrower shall (acting solely at the direction of Sublessee) give the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchaseSecurity Trustee, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable Guaranteed Lender and Ex-Im Bank notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B Exhibit A hereto of each borrowing hereunder (together with any attachments required in connection therewith, a the “Borrowing RequestNOTICE OF BORROWING”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on On the date specified in for the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraphborrowing hereunder, the Collateral ManagerGuaranteed Lender shall, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in of this AgreementAgreement and the other Operative Documents, except that make available to the Borrower shall pay the amount of the Loan to be made on such date in Dollars by depositing the Lenders any lossessame, costs in immediately available funds, in an account or expenses incurred accounts with designated by the Lenders Borrower in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; Notice of Borrowing, provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due amount equal to the occurrence Supplemental Equipment Amount shall not be disbursed to the Borrower on the Delivery Date but rather shall be deposited in the account of the Security Trustee and be held by the Security Trustee for the account of the Borrower (and deposited in Permitted Investments) until the earlier of (i) receipt by the Security Trustee (copied to the Guaranteed Lender) of a force majeurecertificate authorizing disbursement issued by Ex-Im Bank in the form attached hereto as Exhibit D (a “CERTIFICATE AUTHORIZING DISBURSEMENT”) to be issued no later than, the earlier of, forty-five (45) days after the Final Disbursement Date and ( ) days prior to the first Loan Payment Date, or (ii) the date on which a prepayment is required under Section 2.4(d) hereof, and on such date the Security Trustee shall, in the case of (i) above, deposit the amount indicated in such Certificate Authorizing Disbursement in an account designated by the Borrower (at the direction of the Sublessee), apply any other unexpected remaining Supplemental Equipment Amount in accordance with the provisions of Section 2.4 hereof and unforeseen eventdisburse any remaining proceeds of such Permitted Investments in an account designated by the Borrower (at the discretion of the Sublessee) or, includingin the case of (ii) above, without limitation, market disruptions, the Lenders shall make such Loan subject apply (with notice to the terms Guaranteed Lender) the Supplemental Equipment Amount towards the prepayment due on such date in accordance with the provisions of Section 2.4 hereof by making such amount available to the Guaranteed Lender on such date and conditions for Loans otherwise set forth any proceeds of such Permitted Investments remaining after such prepayment shall be deposited in this Agreement as soon as they are reasonably able to do soan account designated by the Borrower.
Appears in 1 contract
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower (i) Each request for which the Approval Request has been approved pursuant to Section 2(b) and funds a borrowing hereunder shall be made by a notice in the Trust Account are insufficient to provide for such purchase, form of Exhibit G from the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing Parent to the Administrative Agent (with a copy "Notice of Borrowing"), setting forth all of the information required to be set forth therein including the Total Gross Availability as set forth in the most recent Borrowing Base Certificate delivered to the Borrower) an irrevocable notice (which may be signed by Administrative Agent, and the Collateral Manager on behalf amount of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewithadvance requested, a “Borrowing Request”). The Administrative Agent and shall notify, as soon as reasonably practical but in no event be given not later than 5:00 p.m. New York City 1:00 P.M., Boston, Massachusetts time (A) on the Business Day on which the proposed borrowing is requested to be made, for Revolving Loans that will be Base Rate Loans and (B) three (3) Business Days prior to the proposed date of the Loanrequested borrowing, for Loans that will be LIBOR Loans. Each Notice of Borrowing shall be given by telecopy, setting forth (1) the requested date of such borrowing, (2) the aggregate amount of such requested borrowing, (3) whether such Loans will be Base Rate Loans or LIBOR Loans, and if appropriate, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to applicable LIBOR Interest Period, (4) certification by the LendersParent that the Credit Parties have complied in all material respects with Article 5, each Loan all of which shall be specified in such manner as is necessary to comply with all limitations on Loans outstanding hereunder (including availability under the Borrowing Base) and (5) the account at which such requested funds should be made available. Each Notice of Borrowing shall be irrevocable by and binding on the Borrowers. Loans made as LIBOR Loans shall be made in a minimum principal amount of Five Hundred Thousand Dollars ($500,000 500,000) and integral multiples of One Hundred Thousand Dollars ($100,000) in excess thereof; provided, that no more than five (5) LIBOR Loans shall be outstanding hereunder at any one time. The Administrative Agent shall give to each Lender prompt notice (but in an amount (not less no event later than zero) equal to (i) 2:00 P.M. Boston, Massachusetts time. on the Purchase Price date of the AssetAdministrative Agent's receipt of notice from the Parent) of each Notice of Borrowing by telecopy, together with telex or cable (other than any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist Notice of loans made Borrowing which will be funded by the Lenders ratably Administrative Agent in accordance with their Individual subsection (d)(ii) below). No later than 3:00 P.M. Boston, Massachusetts time on the date on which a borrowing is requested to be made pursuant to the applicable Notice of Borrowing, each Lender Maximum Funding Amountswill make available to the Administrative Agent at the address of the Administrative Agent set forth on the signature pages hereto, in immediately available funds, its Applicable Percentage of such borrowing requested to be made. Each Unless the Administrative Agent shall have been notified by any Lender at prior to the date of borrowing that such Lender does not intend to make available to the Administrative Agent its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of the borrowing to be made on such date, the Administrative Agent may assume that such Lender to will make such Loan amount available to the Administrative Agent as required above and may at any time cause any Loan the Administrative Agent may, in reliance upon such assumption, make available the amount of the borrowing to be transferred to any domestic or foreign branch or Affiliate of provided by such Lender. Upon satisfaction fulfillment of the conditions to borrowing set forth in this Section 2 and in Section 7Article 5 for such borrowing, the Lenders shall advance Administrative Agent will make such funds available to the applicable principal amount Borrowers at the account specified by the Parent in such Notice of each Loan Borrowing.
(ii) Because the Borrowers anticipate the possibility of requesting borrowings of Revolving Loans on a daily basis and repaying Revolving Loans on a daily basis through the date specified in the related Borrowing Request collection of Accounts and the proceeds of other Collateral, resulting in the amount of outstanding Revolving Loans fluctuating from day to day, in order to administer the Revolving Loans in an efficient manner and to minimize the transfer of
(1) an officer's certificate from the Parent or any other Borrower pursuant to and in accordance with Section 7.1(i) that a Default or Event of Default is in existence or (2) a Notice of Borrowing from the Parent wherein the certification provided therein states that the conditions to the making of the requested Swingline Loan have not been satisfied or (3) a written notice from the Administrative Agent that the conditions to such borrowing specified in Section 5.2 have not been satisfied, which officer's certificate, Notice of Borrowing or notice, in each case, shall not have been rescinded; provided that if the Swingline Lender is the Administrative Agent, the notice specified in subclause (3) shall be presumed if the Administrative Agent has made such determination. If the Swingline Lender makes any Swingline Loans, as provided in the immediately preceding sentence, the amount of outstanding Revolving Loans and each Lender's Applicable Percentage thereof shall be paid into computed weekly rather than daily and shall be adjusted upward or downward on the Trust Account or otherwise at the direction basis of the Borrower amount of outstanding Revolving Loans as of 5:00 P.M. on the Business Day immediately preceding the date of each computation, determined in the manner prescribed below; provided, however, that the Administrative Agent retains the absolute right at any time or from time to time to make the aforedescribed adjustments at intervals more frequently than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period after giving effect to the conversion of then outstanding Swingline Loans into Revolving Loans in accordance with Section 2.10 (such week or lesser period or periods being hereafter referred to as a "Settlement Period"). If the Collateral Manager summary statement is sent by the Administrative Agent and received by the Lenders prior to 12:00 Noon on its behalf) as any Business Day each Lender shall make the transfers described in the next succeeding sentence no later than 3:00 P.M. Boston, Massachusetts time on the day such summary statement was sent; and if such summary statement is sent by the Administrative Agent and received by the Lenders after 12:00 Noon Boston, Massachusetts time on any Business Day, each Lender shall make such transfers no later than 3:00 P.M. Boston, Massachusetts time on the next succeeding Business Day. If in any Settlement Period, the amount of a Lender's Applicable Percentage of the Revolving Loans is in excess of the amount of Revolving Loans actually funded by such Lender, such Lender shall forthwith (but in no event later than the time set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the next preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of such excess; and, on the first or second Business Day prior to other hand, if the proposed date amount of a Lender's Applicable Percentage of the funding Revolving Loans in any Settlement Period is less than the amount of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestRevolving Loans actually funded by such Lender, the Administrative Agent shall promptly notify forthwith transfer to such Lender by wire transfer in immediately available funds the amount of such difference. The obligation of each of the Lenders to transfer such funds shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. Each of such Loan, the Administrative Agent and the Lenders shall use commercially reasonable efforts agree to make such Loan on ▇▇▇▇ their respective books and records at the proposed funding date set forth in end of each Settlement Period to show at all times the Expedited Borrowing Request subject to dollar amount of their respective Applicable Percentages of the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.outstanding
Appears in 1 contract
Sources: Credit Agreement (Industrial Distribution Group Inc)
Borrowings. If(i) Each Revolving Credit Borrowing shall be made on notice given by the Borrower to the Administrative Agent not later than 1:00 p.m. (New York time) (i) one Business Day, in the case of a Borrowing of Base Rate Loans and (ii) three Business Days, in the case of a Borrowing of Eurodollar Rate Loans, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf date of the Borrower for which proposed Borrowing. Each such notice shall be in substantially the Approval Request has been approved pursuant to Section 2(bform of Exhibit C (Form of Notice of Borrowing) and funds in (a “Notice of Borrowing”), specifying (A) the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such proposed Borrowing, (B) the aggregate amount of such proposed Borrowing, (C) whether any portion of the proposed Borrowing will be of Base Rate Loans or Eurodollar Rate Loans and (D) for each Eurodollar Rate Loan, providing the initial Interest Period or Periods thereof. Loans shall be made as Base Rate Loans unless, subject to Section 2.14 (Special Provisions Governing Eurodollar Rate Loans), the Notice of Borrowing specifies that all or a portion thereof shall be Eurodollar Rate Loans. Notwithstanding anything to the contrary contained in Section 2.3(a) (Swing Loans), if any Notice of Borrowing requests a Revolving Credit Borrowing of Base Rate Loans, the Administrative Agent (with may make a copy Swing Loan available to the Borrower) Borrower in an irrevocable notice (which may aggregate amount not to exceed such proposed Borrowing, and the aggregate amount of the corresponding proposed Borrowing shall be signed reduced accordingly by the Collateral Manager on behalf principal amount of the Borrowersuch Swing Loan. Each Revolving Credit Borrowing shall be in an aggregate amount of not less than $1,000,000 or an integral multiple of $1,000,000 in excess thereof.
(ii) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior give to the proposed date each Revolving Credit Lender prompt notice of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion Administrative Agent’s receipt of a Loan by causing any domestic or foreign branch or Affiliate Notice of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do so.Borrowing
Appears in 1 contract
Borrowings. If, prior to the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject Subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that The Term B-2 Lenders on the Amendment No. 5 (x) the Additional Term B-2 Lender agrees to make Effective Date made a loan to the Borrower denominated in Dollars (a “Term B-2 Loan”) on the Amendment No. 5 Effective Date in an aggregate amount not to exceed the amount of its Additional Term B-2 Commitment and (y) all or a portion of each Converted Term Loan of each Amendment No. 5 Converting Lender shall pay be converted into a Term B-2 Loan of such Lender effective as of the Amendment No. 5 Effective Date in a principal amount equal to all or a portion of the principal amount of such Lender’s Converted Term Loan immediately prior to such conversion. For the avoidance of doubt, such conversion shall not constitute a novation of any interest owing to any Amendment No. 5 Converting Lender and each Amendment No. 5 Converting Lender shall receive all accrued and unpaid interest owing to it from the Borrower through but not including the Amendment No. 5 Effective Date with respect to its Converted Term Loan (which, in the case of accrued interest, shall be payable on the Amendment No. 5 Effective Date). of $1,405,000,000. The Term B-2 Loans may from time to time be Eurocurrency Rate Loans or Base Rate Loans, as determined by the Borrower and notified to the Lenders any losses, costs or expenses incurred by the Lenders Administrative Agent in connection accordance with making such Loan on such proposed funding date Section 2.02; provided that all Term B-2 Loans shall on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to Amendment No. 5 Effective Date initially be Eurodollar Rate Loans with an Expedited Borrowing Request due Interest Period equal to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, remaining Interest Period on the Lenders shall make such Loan subject Term B-1 Loans immediately prior to the terms effectiveness of Amendment No. 5 and conditions with an initial Eurodollar Rate equal to the Eurodollar Rate for the Term B-1 Loans otherwise set forth in this Agreement as soon as they are reasonably able immediately prior to do sothe effectiveness of Amendment No. 5. Repaid Term B-2 Loans may not be reborrowed. 2.02. Repaid Term B-2 Loans may not be reborrowed.
Appears in 1 contract
Borrowings. If(a) The Revolving Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans, provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type.
(b) In order to make a Borrowing (other than Borrowings involving continuations or Conversions of outstanding Revolving Loans which the Approval Request has been approved shall be made pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchaseSECTION 5.4), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to an Authorized Officer will give the Administrative Agent (with a copy to the Borrower) an irrevocable telephonic notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and on the Business Day of each Borrowing to be comprised of Base Rate Loans, which notice shall be irrevocable. The Authorized Officer shall provide the Administrative Agent written confirmation of each such telephonic notice but failure to provide such confirmation shall not affect the validity of such telephonic notice; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Effective Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such written notice (each, a "Notice of Borrowing") shall be given in the form of EXHIBIT B-1 and each Notice of Borrowing shall specify (1) the aggregate principal amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Revolving Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to contrary contained herein:
(i) the Purchase Price aggregate principal amount of each Borrowing comprised of Base Rate Loans other than a Borrowing (x) solely to repay a then outstanding Swing Line Loan in accordance with SECTION 3.8(d), which may be in the amount of such Swing Line Loan or (y) solely to satisfy any Reimbursement Obligation under SECTION 4.4, which may be in the amount of such Reimbursement Obligation, shall not be less than $500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Assetaggregate Unutilized Commitments), together with any purchased accrued interest with respect thereto (as specified and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in the Approval Request) minus excess thereof;
(ii) if the balance Borrower shall have failed to designate the Type of Revolving Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if anythe Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Lender will make available to the Administrative Agent at its office referred to in SECTION 14.5 (or at such other location as the Trust AccountAdministrative Agent may designate) an amount, in Dollars and in immediately available funds equal to the amount of the Revolving Loan to be made by such Revolving Lender. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans the Revolving Lenders have made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request amounts available to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Requestas provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject amounts available to the terms Borrower in accordance with SECTION 3,3(a) and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soAdministrative Agent.
Appears in 1 contract
Borrowings. IfEach Term Borrowing and each Revolving Credit Borrowing shall be made upon the Borrower Representative’s irrevocable (provided, that any such notice may state that it is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower Representative by notice to the Administrative Agent on or prior to the Conversion Datespecified effective date if such condition is not satisfied) notice to Administrative Agent, the Collateral Manager wishes to purchase an Asset on behalf of the applicable Borrower. Each such notice from the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager Representative shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The fully executed Funding Notice delivered to Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 (i) 12:00 p.m. New York City time at least three (3) Business Days (or, in the case of the initial Credit Extensions on the Closing Date, one (1) Business Day) prior to the proposed requested date of any Borrowing of SOFR Loans, and (ii) 12:00 p.m. at least one (1) Business Day in advance of the Loanrequested date of any Borrowing of Base Rate Loans. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the Lenders each time it receives a proposed borrowing. Each Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan of SOFR Loans shall be in a minimum principal amount of $500,000 1,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section 2.03(c) and Section 2.04(b), each Borrowing of Base Rate Loans shall be in an a principal amount of $1,000,000 or a whole multiple of $500,000 in excess thereof. Each Funding Notice (not less than zerowhether telephonic or written) equal to shall specify (i) whether the Purchase Price of the AssetBorrower(s) are requesting a Term Borrowing or a Revolving Credit Borrowing, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction requested date of the conditions to borrowing set forth in this Section 2 and in Section 7Borrowing (which shall be a Business Day), (iii) the Lenders shall advance the applicable principal amount of each Loans to be borrowed, (iv) the Type of Loans to be borrowed, (v) if applicable, the duration of the Interest Period with respect thereto and (vi) remittance instructions. If the Borrower Representative requests a Borrowing of SOFR Loans in any such Funding Notice but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month. If the Borrower Representative fails to specify between a Base Rate Loan on the date specified or a SOFR Loan in the related Borrowing Request and applicable Funding Notice, then the proceeds thereof applicable Term Loans or Revolving Loans shall be paid into the Trust Account or otherwise at the direction made as SOFR Loans with an Interest Period of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soone month.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Borrowings. IfCreate, incur, assume or become liable in any manner for any Indebtedness other than to Lenders, except for (a) normal trade debts incurred in the ordinary course of such Loan Party’s business; (b) any Indebtedness in respect of NMFFP Financing outstanding on the Closing Date and described on Schedule 8.04 attached hereto; (c) Indebtedness in respect of NMFFP Financing and/or other financing incurred after the Closing Date that is secured by assets not securing the Secured Obligations, in an aggregate principal amount not to exceed $35,000,000.00 (for all Loan Parties collectively); (d) purchase money Indebtedness (including Capital Leases) incurred by a Loan Party to finance the purchase of fixed assets in an aggregate outstanding amount not to exceed $10,000,000.00 (for all Loan Parties collectively); (e) take or pay arrangements entered into in the ordinary course of business; (f) obligations under the earn-out agreement incurred under the prior to Acquisition by Borrowers of InCon Processing, L.L.C., obligations under the Conversion Dateearn-out agreement incurred under the Bioriginal Acquisition, the Collateral Manager wishes to purchase an Asset on behalf of the Borrower for which the Approval Request has been approved and obligations under other non-competition, earn-out or similar agreements incurred under or pursuant to Permitted Acquisitions; (g) leases of personal property which are not Capital Leases under GAAP as in effect at the date hereof; (h) net liabilities under Hedge Agreements permitted under Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum principal amount of $500,000 and shall be in an amount (not less than zero) equal to 8.14; (i) other unsecured Indebtedness in an aggregate principal amount not to exceed $10,000,000.00 at any one time outstanding (for all Loan Parties collectively); (j) Indebtedness incurred in connection with the Purchase Price financing of the Asset, together with any purchased accrued interest with respect thereto (as specified insurance premiums in the Approval Requestordinary course of business in an aggregate principal amount not to exceed $2,000,000.00 (for all Loan Parties collectively); (k) minus Indebtedness permitted under Section 8.03; (l) Indebtedness of a Person existing at the time such Person became a Subsidiary or assets were acquired from such Person in connection with a Permitted Acquisition; provided that (i) such Indebtedness was not incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or the acquisition of such assets, (ii) no Loan Party other than the balance Person who became a Subsidiary or their Subsidiary shall have any liability or other obligation with respect to such Indebtedness, and (if anyiii) such Indebtedness does not result in any Lien other than Permitted Liens; (m) the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably Bioriginal Indebtedness; and (n) Indebtedness in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction respect of the conditions Canadian Overdraft Facility, in an aggregate amount not to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soexceed C$7,000,000.00.
Appears in 1 contract
Sources: Loan Agreement (Omega Protein Corp)
Borrowings. IfThe Borrower will not and will not permit any Subsidiary to create, prior assume or suffer to exist any unsecured or secured Indebtedness of any kind or any reimbursement obligation or other similar liabilities with respect to letters of credit issued for the Borrower’s or any Subsidiary’s account (other than non‑recourse letters of credit or surety bonds issued as credit enhancement); provided, that this Section 8.04 shall not apply to the Conversion Datefollowing (collectively, the Collateral Manager wishes to purchase an Asset on behalf “Permitted Debt”):
(a) any Loans obtained hereunder and Letters of Credit issued hereunder;
(b) any (i) secured Indebtedness of the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds or of any Subsidiary created in the Trust Account are insufficient course of purchasing or developing real estate or financing construction or other improvements thereon or purchasing furniture, fixtures or other equipment to provide be used in connection therewith or any other related Indebtedness of the Borrower or of any Subsidiary or any refinancings thereof, provided, that neither the Borrower nor any Subsidiary (other than an SPE Subsidiary) shall have any personal liability for such purchaseIndebtedness (except for Indebtedness permitted in Section 8.07(e) hereof), the Collateral Manager shall request a Loan creditors’ recourse being solely to the property being pledged as collateral for such purpose byIndebtedness and the income therefrom and (ii) unsecured recourse Indebtedness of an SPE Subsidiary (and only such SPE Subsidiary) created in the course of purchasing or developing real estate or financing construction or other improvements thereon or purchasing furniture, no later than noon, New York City time, on the third Business Day preceding the proposed date fixtures or other equipment therefor or any other related Indebtedness of such LoanSPE Subsidiary (and only such SPE Subsidiary) or any refinancings thereof;
(c) Indebtedness of the Borrower or of any Subsidiary (other than any SPE Subsidiary) under any Hedge Agreement relating to Indebtedness otherwise permitted under this Section 8.04; provided, providing that, any Indebtedness of the Borrower or of any such Subsidiary under any Hedge Agreement proposed to be entered into or guaranteed by the Borrower, FCCC or any other Subsidiary (other than a SPE Subsidiary), along with (without duplication) all outstanding Indebtedness under Hedge Agreements entered into or guaranteed by the Parent, in each case with a Person that is not a Bank, that results in a Measured Credit Risk for all such Hedge Agreements entered into with Persons other than a Bank, in excess of Thirty Three Million Five Hundred Thousand Dollars ($33,500,000), shall require the prior written consent of the Required Banks (such written consent to be delivered by each consenting Bank to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later not more than 5:00 p.m. New York City time three (3) Business Cleveland Banking Days prior after the request for such consent has been delivered by the Borrower to the proposed date of the Loan, the Lenders Agent; provided that each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan Bank that does not deliver such written consent within such three (3) Cleveland Banking Day period shall be in a minimum principal amount deemed to have denied the request for such Hedge Agreement);
(d) Indebtedness of $500,000 and shall be in an amount (not less than zero) equal to any SPE Subsidiary under (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus Hedge Agreements or (ii) Total Rate of Return Swaps relating to Indebtedness otherwise permitted under this Section 8.04, in all cases under the balance foregoing clauses (if anyi) in the Trust Account. To and (ii), that are recourse solely to such SPE Subsidiary;
(e) any Intercompany Loans permitted under Section 8.16 hereof;
(f) any guarantee or indemnity permitted by Section 8.07 hereof to the extent that more than one Lender is a party hereto, each Loan shall consist such guarantee or indemnity constitutes Indebtedness;
(g) Indebtedness of loans made by the Lenders ratably FCCC and FCL in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion favor of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen eventnon-affiliated third parties, including, without limitation, market disruptionsTotal Rate of Return Swaps, up to a maximum principal amount outstanding at any time of Two Hundred Million Dollars ($200,000,000) in the Lenders shall make such Loan aggregate, to be used solely for the purposes of (i) originating loans to non-affiliated third parties (subject to the terms and conditions for Loans otherwise limitations set forth in Section 8.06(e) hereof) and Affiliates of FCCC and/or FCL, (ii) acquiring loans, promissory notes and bonds issued by non-affiliated third parties (subject to the limitations set forth in Section 8.06(e) hereof) and (iii) entering into Total Rate of Return Swaps;
(h) Indebtedness of any Subsidiary incurred or assumed to pay the relevant seller the Consideration required in connection with a Multi-Asset Acquisition by such Subsidiary, so long as such Indebtedness was not incurred in contemplation of (if being assumed in connection with) such Multi-Asset Acquisition and (i) along with all other Consideration paid, incurred and/or assumed in connection with such Multi-Asset Acquisition (or series of related Multi-Asset Acquisitions), does not exceed Two Hundred Million Dollars ($200,000,000) in an aggregate principal amount outstanding at any time and (ii) along with the total Consideration paid, incurred and/or assumed by all Subsidiaries in connection with Multi-Asset Acquisitions, does not exceed Eight Hundred Million Dollars ($800,000,000) in an aggregate principal amount outstanding at any time;
(i) [reserved];
(j) Indebtedness of the Borrower not otherwise permitted under this Agreement as soon as they Section 8.04, up to a maximum principal amount outstanding at any time of Five Million Dollars ($5,000,000), which is incurred in the ordinary course of business; provided that all outstanding Indebtedness incurred under Section 9.10(o) of the Guaranty shall be included, without duplication, in calculating whether the dollar limitation contained in this clause (j) has been met;
(k) any leases entered into by the Borrower or its Subsidiaries required to be capitalized under Financial Accounting Standards Board Standard No. 13; provided, that (i) the aggregate amount of such capitalized leases outstanding at any time shall not exceed Eighteen Million Dollars ($18,000,000), (ii) the foregoing dollar limitation shall not apply to any such capitalized lease, the obligations of which are reasonably able not recourse to do sothe Parent or the Borrower or any of its Subsidiaries (other than (x) Barclays Event Center, LLC, a Delaware limited liability company, in connection with the Atlantic Yards Arena project located in Brooklyn, New York or (y) any SPE Subsidiary) and (iii) all Indebtedness incurred under Section 9.10(e) of the Guaranty shall be included, without duplication, in calculating whether the dollar limitation contained in this clause (k) has been met; and
(l) Indebtedness of the Borrower or of any Subsidiary incurred in connection with the acquisition, development or financing of any Renewable Energy Facility, provided, that, (i) any such Indebtedness of the Borrower shall be Nonrecourse Debt and (ii) the amount of outstanding Indebtedness incurred pursuant to this clause (l) does not exceed Fifty Million Dollars ($50,000,000) in an aggregate principal amount outstanding at any time.
Appears in 1 contract
Borrowings. If(a) The Revolving Loans shall, prior to at the Conversion Date, the Collateral Manager wishes to purchase an Asset on behalf option of the Borrower for and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times.
(b) In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 10:00 a.m., Charlotte time, on the Business Day of any Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) except for a Borrowing with respect to a Refunded Swingline Loan in accordance with Section 2.2(e), the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Unutilized Commitments) or, if less, in the amount of the aggregate Unutilized Commitments, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan “Notice of Swingline Borrowing”) shall be given in a minimum the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance (if any) requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 10:00 a.m., Charlotte time on the Business Day of the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the preceding paragraphcontrary, on the relevant Borrowing Date, the Collateral ManagerRefunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.14(b).
(f) If, as a result of any Bankruptcy Event with respect to the Borrower, may deliver Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a Borrowing Request notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent on at the first or second Business Day prior Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAdministrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Loan subject Borrowing of Revolving Loans to meet the terms and minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 3.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Borrowings. IfIt will not (and it will procure that each Restricted Subsidiary will not) have any Indebtedness for Borrowed Money, prior to or issue any guarantees, indemnities or other similar assurances (each being for the Conversion Datepurposes of this paragraph a "GUARANTEE"), except (at any time):
(i) amounts due under: (a) this Agreement; (b) the Collateral Manager wishes to purchase an Asset on behalf Overdraft Facilities (as long as the amount outstanding does not exceed (Pounds)5,000,000); and (c) the Hedging Contracts;
(ii) amounts due under finance leases where the aggregate principal elements of the Borrower for which the Approval Request has been approved pursuant to Section 2(bobligations in respect of those leases does not exceed (Pounds)3,500,000 in aggregate;
(iii) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf guarantees of the Borrower's obligations under this Agreement;
(iv) amounts borrowed by electronic mail the Borrower or facsimile transmission substantially a Restricted Subsidiary (which is a wholly-owned member of the Borrower's Restricted Group) from a Restricted Subsidiary (which is a wholly-owned member of the Borrower's Restricted Group) or from the Borrower;
(v) guarantees by the Borrower or a Restricted Subsidiary (which is a wholly-owned member of the Borrower's Restricted Group) of obligations (which are not prohibited by the terms of the Financing Documents) of a Restricted Subsidiary (which is a wholly-owned member of the Borrower's Restricted Group) or the Borrower;
(vi) amounts due in respect of finance provided by suppliers of goods and services in the form ordinary course of Annex B hereto business and not exceeding (together with any attachments required Pounds)1,000,000 in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three aggregate;
(3vii) Business Days prior amounts due from the Borrower to the proposed date Parent under the Subordinated Loan Agreement;
(viii) amounts due from the Borrower to CT Finance under the Inter- Company Loan Agreement;
(ix) guarantees of CT Finance's obligations under the LoanBonds. This applies to guarantees relating to the first issue of bonds under the Bonds. It does not apply to guarantees relating to any issue of further or other bonds;
(x) guarantees of amounts not exceeding (Pounds)500,000 in aggregate;
(xi) Indebtedness for Borrowed Money incurred by, the Lenders each time it receives a Borrowing Request. Unless provided by or otherwise agreed to made available by the Lenders, each Loan shall be Borrower's Restricted Group in a minimum principal relation to Unrestricted Entities so long as the aggregate amount of $500,000 and shall be in an amount (not less than zero) equal to (i) the Purchase Price of the AssetIndebtedness for Borrowed Money incurred by, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Account. To the extent that more than one Lender is a party hereto, each Loan shall consist of loans provided by or otherwise made by the Lenders ratably Borrower's Restricted Group and outstanding at such time in accordance relation to Unrestricted Entities does not exceed the Unrestricted Entities Investment Limit when aggregated with their Individual Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan other Investment Amounts which have been previously incurred by, provided by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf made available by members of the Borrower, may deliver a Borrowing Request 's Restricted Group after the Amendment Date in relation to Unrestricted Entities and which (in the case of Indebtedness for Borrowed Money) are outstanding at such time; and
(xii) other borrowings not exceeding (Pounds)5,000,000 in aggregate. This paragraph does not apply to the Administrative Agent on the first or second Business Day prior to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestParent, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions who may have Indebtedness for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeureBorrowed Money, or any other unexpected and unforeseen eventissue guarantees, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soit sees fit.
Appears in 1 contract
Sources: Loan Amendment Agreement (Crown Castle International Corp)
Borrowings. If(a) The Revolving Loans (together with the Swingline Loans, each a "Class" of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a "Type" of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no Borrowing of LIBOR Loans may be made at any time prior to the Conversion Datethird (3rd) Business Day after the Closing Date unless otherwise agreed by the Lenders. The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to make a Borrowing (other than (x) Borrowings of Swingline Loans, which shall be made pursuant to SECTION 2.2(D), (y) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to SECTION 2.2(E), and (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to SECTION 2.11), the Collateral Manager wishes to purchase an Asset on behalf of Borrower will give the Borrower for which the Approval Request has been approved pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase, the Collateral Manager shall request a Loan for such purpose by, no Agent written notice not later than noon11:00 a.m., New York City Charlotte time, on the third Business Day preceding the proposed date of such Loan, providing to the Administrative Agent (with a copy to the Borrower) an irrevocable notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Closing Date may, at the discretion of the Agent, be given later than the times specified hereinabove. Each such notice (each, a "Notice of Borrowing") shall be irrevocable, shall be given in the form of EXHIBIT B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Agent will promptly notify each Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(ii) if the Borrower shall have failed to designate the Type of Revolving Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Agent at its office referred to in SECTION 11.5 (or at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Agent as provided hereinabove, the Agent will make the aggregate of such amounts available to the Borrower in accordance with SECTION 2.3(A) and in like funds as received by the Agent.
(d) In order to make a Borrowing of a Swingline Loan, the Lenders each time it receives Borrower will give the Agent and the Swingline Lender written notice not later than 11:00 a.m., Charlotte time, on the proposed Borrowing Date of such Borrowing. Each such notice (each, a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan "Notice of Swingline Borrowing") shall be irrevocable, shall be given in a minimum the form of EXHIBIT B-2 and shall specify the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 250,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)). Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Agent at its office referred to in SECTION 11.5 (not less than zeroor at such other location as the Agent may designate) an amount, in Dollars and in immediately available funds, equal to (i) the Purchase Price amount of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus (ii) the balance (if any) in the Trust Accountrequested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Agent will make such amount available to the Borrower in accordance with their Individual SECTION 2.3(A) and in like funds as received by the Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Agent (if the Agent is different from the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Collateral ManagerBorrower), on behalf of the Borrowernot later than 11:00 a.m., may deliver a Borrowing Request to the Administrative Agent on the first or second Charlotte time, one (1) Business Day prior to the proposed date Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans unless otherwise agreed by the Lenders) on such Borrowing Date in an aggregate amount equal to the amount of such Loan, and Swingline Loans (the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date "Refunded Swingline Loans") outstanding on the date any interest such notice is due under given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Agent at its office referred to in SECTION 11.5 (or at such Loan; providedother location as the Agent may designate) an amount, that if in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due have made such amounts available to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptionsAgent as provided hereinabove, the Lenders shall Agent will make the aggregate of such Loan subject amounts available to the terms and conditions for Loans otherwise set forth Swingline Lender in like funds as received by the Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender's ratable share thereof, in its capacity as soon a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as they are reasonably able provided above (including a Revolving Loan deemed to do so.have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of
Appears in 1 contract
Borrowings. If(a) The Term Loans and the Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no LIBOR Loans may be borrowed at any time prior to the third Business Day after the Closing Date. The Swingline Loans shall be made and maintained as Base Rate Loans at all times.
(b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, prior to each Borrowing to be comprised of Base Rate Loans and three Business Days prior to each Borrowing to be comprised of LIBOR Loans; provided, however, that requests for the Conversion Borrowing of the Term Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Collateral Manager wishes to purchase an Asset on behalf Administrative Agent will promptly notify each applicable Lender of the Borrower for which proposed Borrowing. Notwithstanding anything to the Approval Request has been approved pursuant to Section 2(bcontrary contained herein:
(i) and funds the aggregate principal amount of the Borrowing of Term Loans shall be in the Trust Account are insufficient amount of the aggregate Term Loan Commitments available on the Closing Date and such Borrowing shall be made on the Closing Date;
(ii) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Revolving Credit Commitments less the Aggregate Revolving Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof;
(iii) if the Borrower shall have failed to provide for such purchasedesignate the Type of Loans comprising a Borrowing, the Collateral Manager Borrower shall request be deemed to have requested a Loan for such purpose byBorrowing comprised of Base Rate Loans; and
(iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, no then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than noon1:00 p.m., New York City Charlotte time, on the third Business Day preceding requested Borrowing Date (which shall be the proposed date Closing Date, in the case of such Loanthe Term Loans), providing each applicable Lender will make available to the Administrative Agent (with a copy at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Borroweramount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) an irrevocable and in like funds as received by the Administrative Agent.
(d) In order to make a Borrowing of a Swingline Loan (other than borrowings pursuant to a ▇▇▇▇▇ Fargo Financial Management Account or similar cash management product offered by ▇▇▇▇▇ Fargo, which shall be effected as provided thereunder), the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (which may each, a “Notice of Swingline Borrowing”) shall be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially given in the form of Annex B hereto (together with any attachments required in connection therewithExhibit B-2, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event later than 5:00 p.m. New York City time three (3) Business Days prior to the proposed date of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance (if any) requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender is a party heretohas made such amount available to the Administrative Agent as provided hereinabove, each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic (whether or foreign branch or Affiliate not an Event of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding ) in its sole and absolute discretion, and is hereby authorized and empowered by the preceding paragraphBorrower to, the Collateral Manager, on behalf of the Borrower, may deliver cause a Borrowing Request of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the first or second Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the funding of a Revolving Loan (an “Expedited Borrowing Request”)to be made by such Lender. Upon receipt of an Expedited Borrowing RequestTo the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due Section 2.2(e) and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Loan subject Borrowing of Revolving Loans to meet the terms and minimum Borrowing amount specified in Section 2.2(b), or (iv) the failure of any conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Borrowings. If(a) The Revolving Loans shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans, LIBOR Loans or LIBOR Market Index Loans (each, a “Type” of Loan), provided that (i) all Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no Borrowing of LIBOR Loans may be made at any time prior to the Conversion third (3rd) Business Day after the Restatement Effective Date, the Collateral Manager wishes . The Swingline Loans shall be made and maintained as LIBOR Market Index Loans at all times.
(b) In order to purchase an Asset on behalf make a Borrowing (other than (w) Borrowings of the Borrower for Swingline Loans which the Approval Request has been approved shall be made pursuant to Section 2(b2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and funds in the Trust Account are insufficient (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to provide for such purchaseSection 2.11), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than 11:00 a.m. on the requested Borrowing Date for each Borrowing to be comprised of Base Rate Loans or LIBOR Market Index Loans; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Restatement Effective Date may, at the discretion of the Administrative Agent, be given later than the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Lender of the proposed date of Borrowing. Notwithstanding anything to the Loan, contrary contained herein:
(i) the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan shall be in a minimum aggregate principal amount of each Borrowing (other than Borrowings of Swingline Loans which shall be made pursuant to Section 2.2(d)) shall not be less than $1,000,000 or, if greater, an integral multiple of $500,000 in excess thereof (or, if less, in the amount of the aggregate Unutilized Commitments);
(ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of LIBOR Market Index Loans (other than Borrowings that are Swingline Loans); and
(iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.
(c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender will make available to the Administrative Agent at its office referred to in Section 11.4 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan to be made by such Lender. To the extent (i) the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, and (ii) the conditions precedent in Section 4.2 are satisfied, the Administrative Agent will make the aggregate of such amounts available to the Borrower not later than 3:00 p.m. on the requested Borrowing Date, in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent.
(d) Borrowings for Swingline Loans will be made pursuant to the Sweep Program as long as the Sweep Program is in effect. However, upon termination of the Sweep Program, the Borrower will give the Administrative Agent and the Swingline Lender written notice not later than 11:00 a.m., Charlotte time, on the requested Borrowing Date, in order to make a Borrowing of a Swingline Loan. Each such notice (each, a “Notice of Swingline Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-2 and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount (not less than zero) equal to (i) the Purchase Price of the Asset, together with any purchased accrued interest with respect thereto (as specified in the Approval RequestUnutilized Swingline Commitment)) minus and (ii) the balance requested Borrowing Date, which shall be a Business Day. Not later than 2:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at its office referred to in Section 11.4 (if anyor at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the Trust Accountamount of the requested Swingline Loan. To the extent that more than one the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove (if the Administrative Agent is a party heretodifferent from the Swingline Lender), each Loan shall consist of loans made by the Lenders ratably Administrative Agent will make such amount available to the Borrower in accordance with their Individual Section 2.3(a) and in like funds as received by the Administrative Agent.
(e) With respect to any outstanding Swingline Loans, the Swingline Lender Maximum Funding Amounts. Each Lender at its option may make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate (regardless of such Lender. Upon satisfaction whether an Event of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuingcontinuing or whether the Sweep Program is in effect) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is different from the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, on the requested Borrowing Date, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as LIBOR Market Index Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at its office referred to in Section 11.4 (or at such other location as the Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the preceding paragraphcontrary, on the relevant Borrowing Date, the Collateral ManagerRefunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b).
(f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, may deliver Revolving Loans are not made pursuant to subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a Borrowing Request notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty, and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent on at its office referred to in Section 11.4 (or at such other location as the first or second Business Day prior Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the proposed date of the funding of a Loan (an “Expedited Borrowing Request”). Upon receipt of an Expedited Borrowing RequestAdministrative Agent as provided hereinabove, the Administrative Agent shall promptly notify will make the Lenders aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this subsection (f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, and the Lenders shall use commercially reasonable efforts Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment.
(g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make such Loan on Revolving Loans for the proposed funding date set forth in the Expedited Borrowing Request subject to the terms and conditions for borrowings otherwise set forth in this Agreement, except that the Borrower shall pay to the Lenders purpose of repaying any losses, costs or expenses incurred by the Lenders in connection with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan Refunded Swingline Loans pursuant to an Expedited Borrowing Request due subsection (e) above and each such Lender’s obligation to the occurrence of purchase a force majeure, participation in any unpaid Swingline Loans pursuant to subsection (f) above shall be absolute and unconditional and shall not be affected by any circumstance or any other unexpected and unforeseen eventevent whatsoever, including, without limitation, market disruptions(i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Lenders shall make such Loan subject to Administrative Agent, the terms and Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the business, operations, properties, assets, condition (financial or otherwise) or prospects of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement or the Sweep Program by any party hereto, (v) whether the Sweep Program is in effect or (vi) the failure of the conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able Section 4.2 or elsewhere herein to do sobe satisfied.
Appears in 1 contract
Sources: Credit Agreement (Old Dominion Freight Line Inc/Va)
Borrowings. If(a) The Loans shall be denominated in Dollars and, prior at the option of the applicable Borrower and subject to the Conversion Dateterms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all Revolving Loans comprising the Collateral Manager wishes to purchase an Asset on behalf same Borrowing shall, unless otherwise specifically provided herein, be of the Borrower for same Type, and (ii) all Swingline Loans shall be Base Rate Loans.
(b) In order to make a Borrowing (other than Borrowings involving continuations or conversions of outstanding Revolving Loans, which the Approval Request has been approved shall be made pursuant to Section 2(b) and funds in the Trust Account are insufficient to provide for such purchase2.10), the Collateral Manager shall request a Loan for such purpose by, no later than noon, New York City time, on the third Business Day preceding the proposed date of such Loan, providing to applicable Borrower will give the Administrative Agent (with a copy to the Borrower) an irrevocable written notice (which may be signed by the Collateral Manager on behalf of the Borrower) by electronic mail or facsimile transmission substantially in the form of Annex B hereto (together with any attachments required in connection therewith, a “Borrowing Request”). The Administrative Agent shall notify, as soon as reasonably practical but in no event not later than 5:00 p.m. New York City time 11:00 a.m., three (3) Business Days prior to each Borrowing of LIBOR Loans and not later than 10:00 a.m., on the same Business Day prior to each Borrowing of Base Rate Loans and Swingline Loans. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, initial Type of the Loans to be made pursuant to such Borrowing, and whether such Loans are Revolving Loans or Swingline Loans, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each Lender of the proposed date Borrowing. Notwithstanding anything to the contrary contained herein:
(i) (A) each Borrowing of the Loan, the Lenders each time it receives a Borrowing Request. Unless otherwise agreed to by the Lenders, each Loan Base Rate Loans (other than Swingline Loans) shall be in a minimum principal amount not less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof, (B) each Borrowing of LIBOR Loans shall be in a principal amount not less than $3,000,000 or, if greater, an integral multiple of $500,000 in excess thereof, and (C) each Borrowing of Swingline Loans shall be in an a principal amount (not less than zero$500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, in each case if less than the minimum amount or if not in such an integral multiple, in the amount of the aggregate Unutilized Commitments (or the unutilized Swingline Sublimit, as the case may be));
(ii) equal if the applicable Borrower shall have failed to designate the Type of Loans in a Notice of Borrowing, then the Loans shall be made as Base Rate Loans; and
(iii) if the applicable Borrower shall have failed to specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then such Borrower shall be deemed to have selected an Interest Period of one month.
(c) Not later than 1:00 p.m. on the requested Borrowing Date, (i) each Lender will make available to the Purchase Price Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its Ratable Share of the Assetsuch requested Borrowing as its Revolving Loan or Revolving Loans, together with any purchased accrued interest with respect thereto (as specified in the Approval Request) minus and (ii) the balance (if any) in the Trust Account. To the extent that more than one Swingline Lender is a party hereto, each Loan shall consist of loans made by the Lenders ratably in accordance with their Individual Lender Maximum Funding Amounts. Each Lender at its option may will make any Loan or portion of a Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan and may at any time cause any Loan to be transferred to any domestic or foreign branch or Affiliate of such Lender. Upon satisfaction of the conditions to borrowing set forth in this Section 2 and in Section 7, the Lenders shall advance the applicable principal amount of each Loan on the date specified in the related Borrowing Request and the proceeds thereof shall be paid into the Trust Account or otherwise at the direction of the Borrower (or the Collateral Manager on its behalf) as set forth in the Borrowing Request for application toward the acquisition cost of the related Asset. The Lenders shall not fund any Loans to the Borrower if a Default has occurred and is continuing. Notwithstanding the preceding paragraph, the Collateral Manager, on behalf of the Borrower, may deliver a Borrowing Request available to the Administrative Agent on at the first or second Business Day prior to Payment Office an amount, in Dollars and in immediately available funds, the proposed date Swingline Loans. As promptly as practicable, upon satisfaction of the funding of a Loan applicable conditions set forth in Section 3.2 (an “Expedited and, if such Borrowing Request”is the initial Loans, Section 3.1). Upon receipt of an Expedited Borrowing Request, the Administrative Agent shall promptly notify the Lenders of such Loan, and the Lenders shall use commercially reasonable efforts to make such Loan on the proposed funding date set forth in the Expedited Borrowing Request subject all funds so received available to the terms and conditions for borrowings otherwise set forth applicable Borrower in this Agreement, except that the Borrower shall pay to the Lenders any losses, costs or expenses incurred like funds as received by the Lenders Administrative Agent in connection accordance with making such Loan on such proposed funding date on the date any interest is due under such Loan; provided, that if the Lenders are unable to make a Loan pursuant to an Expedited Borrowing Request due to the occurrence of a force majeure, or any other unexpected and unforeseen event, including, without limitation, market disruptions, the Lenders shall make such Loan subject to the terms and conditions for Loans otherwise set forth in this Agreement as soon as they are reasonably able to do soSection 2.3(a).
Appears in 1 contract
Sources: Credit Agreement (Allied World Assurance Co Holdings, AG)