Making of Advances. (a) Each Lender shall, before 12:00noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address. (b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender. (c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of Borrower on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available available, such payment to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein Agent shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.constitute such
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.1(E) apply to a requested Borrowing as described in SECTION 2.1(D), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.1(C), Agent shall notify the Revolving/Term Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving/Term Lender shall make the amount of such Revolving/Term Lender's Pro Rata Revolving/Term Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; PROVIDED, however, that, subject to the provisions of SECTION 2.1(k), Agent shall not request any Revolving/Term Lender to make, and no Revolving/Term Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Revolving/Term Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of Borrower on such Funding Date.
(ii) Unless Agent receives notice from a Revolving/Term Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Revolving/Term Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Revolving/Term Lender's ratable portion Pro Rata Revolving/Term Share of such the Borrowing, the Administrative Agent may assume that such each Revolving/Term Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Revolving/Term Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Revolving/Term Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Agent to any Revolving/Term Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving/Term Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Revolving/Term Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Revolving/Term Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Revolving/Term Lender shall be responsible for the failure of any other Revolving/Term Lender to make the Advance to be made by such other Revolving/Term Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Making of Advances. The Borrower shall give the Agent and each Managing Agent written notice (awhich notice shall be irrevocable and effective only upon receipt by the Agent and each Managing Agent) Each Lender shall, before 12:00noon of each request for an Advance (each such request a “Notice of Borrowing”) not later than 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office day which is two (2) Business Days prior to the Administrative Agent at proposed borrowing date, which notice shall specify (i) the Administrative Agent's address referred to in Section 10.02proposed borrowing date therefor (each such date, in same day fundsa “Borrowing Date”), such Lender's (ii) the aggregate principal amount of the proposed borrowing (the “Proposed Borrowing”) and (iii) the portion of such BorrowingProposed Borrowing allocable to each Lender Group (such Lender Group’s “Requested Amount”). Contract Advances Any such Notice of Borrowing shall be made substantially in the form of Exhibit B hereto, dated the date such request is being made, signed by a Responsible Officer of the Lenders ratably Borrower and otherwise appropriately completed. The Proposed Borrowing specified in accordance with their several Commitments and Competitive Advances any Notice of Borrowing shall be made by at least $1,000,000 and in integral multiples of $100,000 in excess thereof. During the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender period prior to the time of Lender Termination Date, each Conduit Lender shall promptly notify its related Managing Agent whether it has determined to make a proposed Advance and each Managing Agent shall promptly thereafter notify the Borrower whether its respective Conduit Lenders have determined to make such Advance. If the Conduit Lenders in any Borrowing that such Lender will not Group have declined to make available to the Administrative Agent such Lender's ratable any portion of such Borrowingproposed Advance, the Administrative related Managing Agent may assume that shall promptly send notice of the Proposed Borrowing to all of the Secondary Lenders in such Lender has made Group concurrently by telecopier, telex or cable specifying the Borrowing Date for such borrowing, each such Secondary Lender’s Pro Rata Share multiplied by the applicable portion available of the Requested Amount and whether the Yield for such Advance is calculated based on the Eurodollar Rate or the Alternate Base Rate. On each Borrowing Date, the Conduit Lenders and/or the Secondary Lenders of each Lender Group shall, subject to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) terms and conditions of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionAgreement, make available to the Borrower that made at the request for such Borrowing a corresponding Borrower’s Account Advances in an amount on such date. If and equal to the extent that any Requested Amount with respect to such Lender (a "non-performing Lender") shall Group in immediately available funds. To the extent not have so made such ratable portion available to the Administrative Agentcovered by Section 2.08, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for shall indemnify each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Conduit Lender, each Secondary Lender, each Managing Agent and the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have Agent against any non- performing Lender.
(c) The loss or expense incurred by them as a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing or as a result of the failure of the Borrower to receive any Lender to make the Advance to be made by it requested in a Notice of Borrowing as part a result of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be satisfied, including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such Advance. Each Proposed Borrowing hereunder shall be made (i) ratably among the Lender Groups in accordance with their Group Advance Limit and (ii) in amounts among the Conduit Lenders in any Lender Group as determined by such other Lender on the date of any BorrowingConduit Lenders in their sole discretion.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Highland Floating Rate Advantage Fund)
Making of Advances. (ai) Each Lender shallshall make the amount of such Lender's Pro Rata Share of the Borrowing available to Agent in immediately available funds, before 12:00noon to Agent's Account, not later than 10:00 a.m. (New York City California time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedClosing Date. After the Administrative Agent's receipt of the proceeds of such funds and Advances, upon fulfillment satisfaction of the applicable conditions precedent set forth in ArticleVSection 3, Agent shall make the Administrative Agent will make such funds proceeds thereof available to Borrower on the Borrower Closing Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have actual knowledge that made one or more of the request for conditions precedent set forth in Section 3 will not be satisfied on the Closing Date unless such Borrowing at the Administrative Agent's aforesaid addresscondition has been waived.
(bii) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such each Lender has made such portion will make the amount of that Lender's Pro Rata Share of the Loan available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Closing Date pursuant to Section 3.042.2(a)(i), and the Administrative Agent may, in may (but shall not be so required),in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds pursuant to Section 2.2(a)(i) and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following the Closing Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Base Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of the Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Closing Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent (or if required by the Intercreditor Agreement, to the Collateral Agent) for Agent's account, together with interest thereon for each day elapsed since the date such amount is repaid of the Borrowing, at a rate per annum equal to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Base Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make any Advance on the Advance to be made by it as part of any Borrowing Closing Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingClosing Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date Closing Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payment made by Borrower to Agent for the Defaulting Lender's benefit and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any Borrowing.such payment to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.2(c) apply to a requested Borrowing, before 12:00noon then promptly after Agent’s receipt of a request for Borrowing, Agent shall notify the Lenders, not later than 1:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 11:00 a.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.2(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 9:00 a.m. (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (LEAF Equipment Finance Fund 4, L.P.)
Making of Advances. (a) Each Lender shall, before 12:00noon 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each In the event that Swing Lender shallis not obligated to make a Swing Loan, before 12:00noon (New York City time) on the date then promptly after receipt of such Borrowing, make available a request for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted a Borrowing pursuant to Section 3.03(b)(iv2.3(a)(i), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day or U.S. Government Securities Business Day, as applicable, that is (A) in the amounts so acceptedcase of a Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case of a SOFR Loan, prior to 2:00 p.m. at least three (3) U.S. Government Securities Business Days prior to the requested Funding Date. If Agent has notified the Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then each Lender shall make the amount of such ▇▇▇▇▇▇’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. on the Business Day that is the requested Funding Date. After the Administrative Agent's ’s receipt of the proceeds of such Advances from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds and upon fulfillment equal to such proceeds received by Agent to the Designated Account; provided, that subject to the provisions of Section 2.3(d)(ii), no Lender shall have an obligation to make any Advance, if (1) one or more of the applicable conditions precedent set forth in ArticleVSection 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the Administrative Agent will make requested Borrowing would exceed the Availability on such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid addressFunding Date.
(bii) Unless the Administrative Agent shall have received receives notice from a Lender prior to 12:30 p.m. on the time Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of any a requested Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such Lender's ratable portion account of such Borrower the amount of that ▇▇▇▇▇▇’s Pro Rata Share of the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount amount. If, on such date. If and to the extent that requested Funding Date, any such Lender (a "non-performing Lender") shall not have so made such ratable portion remitted the full amount that it is required to make available to Agent in immediately available funds and if Agent has made available to Borrower such amount on the Administrative requested Funding Date, then such Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, no later than 1:00 p.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such ▇▇▇▇▇▇’s portion of such Borrowing for the Funding Date shall be for Agent’s separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrower such amount, then that Lender shall be obligated to immediately remit such amount to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from until the date on which such amount is so remitted. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then such Borrower until the date payment to Agent shall constitute such Lender’s Advance for all purposes of this Agreement. If such amount is repaid not made available to Agent on the Administrative Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, at (i)in Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the case date of such BorrowerBorrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in it being understood that the case amount of such Lender, the Federal Funds Rateinterest shall be payable only once). Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such Borrowingany Funding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
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Making of Advances. (ai) Each Lender shallshall make the amount of such Lender's Pro Rata Share of the Borrowing available to Agent in immediately available funds, before 12:00noon to Agent's Account, not later than 10:00 a.m. (New York City Calgary time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedClosing Date. After the Administrative Agent's receipt of the proceeds of such funds and Advances, upon fulfillment satisfaction of the applicable conditions precedent set forth in ArticleVSection 3, Agent shall make the Administrative Agent will make such funds proceeds thereof available to Borrower on the Borrower Closing Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have actual knowledge that made one or more of the request for conditions precedent set forth in Section 3 will not be satisfied on the Closing Date unless such Borrowing at the Administrative Agent's aforesaid addresscondition has been waived.
(bii) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such each Lender has made such portion will make the amount of that Lender's Pro Rata Share of the Loan available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Closing Date pursuant to Section 3.042.2(a)(i), and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds pursuant to Section 2.2(a)(i) and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following the Closing Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Interest Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of the Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Closing Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date such amount is repaid of the Borrowing, at a rate per annum equal to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Interest Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make any Advance on the Advance to be made by it as part of any Borrowing Closing Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingClosing Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date Closing Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payment made by Borrower to Agent for the Defaulting Lender's benefit and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any Borrowing.such payment to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This
Appears in 1 contract
Making of Advances. (a) Each In the event that Swing Lender shallis not obligated to make a Swing Loan, before 12:00noon (New York City time) on the date then after receipt of such Borrowing, make available a request for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted a Borrowing pursuant to Section 3.03(b)(iv2.3(a)(i), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day or U.S. Government Securities Business Day, as applicable, that is (A) in the amounts so acceptedcase of a Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case of a LIBOR RateSOFR Loan, prior to 11:00 a.m. at least three U.S. Government Securities Business Days prior to the requested Funding Date. If Agent has notified the Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then each Lender shall make the amount of such L▇▇▇▇▇'s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. on the Business Day that is the requested Funding Date. After the Administrative Agent's receipt of the proceeds of such Advances from the Lenders, Agent shall make the proceeds thereof available to Borrowers on the applicable Funding Date by transferring immediately available funds and upon fulfillment equal to such proceeds received by Agent to the Designated Account; provided, that subject to the provisions of Section 2.3(i), no Lender shall have an obligation to make any Advance, if (1) one or more of the applicable conditions precedent set forth in ArticleVSection 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the Administrative requested Borrowing would exceed the Availability on such Funding Date. Unless Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received receives notice from a Lender prior to 9:30 a.m. on the time Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of any a requested Borrowing that such Lender L▇▇▇▇▇ will not make available as and when required hereunder to Agent for the Administrative Agent such Lenderaccount of Borrowers the amount of that L▇▇▇▇▇'s ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing Borrowers a corresponding amount amount. If, on such date. If and to the extent that requested Funding Date, any such Lender (a "non-performing Lender") shall not have so made such ratable portion remitted the full amount that it is required to make available to Agent in immediately available funds and if Agent has made available to Borrowers such amount on the Administrative requested Funding Date, then such Lender shall make the amount of such L▇▇▇▇▇'s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, no later than 10:00 a.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such L▇▇▇▇▇'s portion of such Borrowing for the Funding Date shall be for Agent's separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrowers such amount, then that Lender shall be obligated to immediately remit such amount to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from until the date on which such amount is so remitted. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then such Borrower until the date payment to Agent shall constitute such Lender's Advance for all purposes of this Agreement. If such amount is repaid not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, at (i)in Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the case date of such BorrowerBorrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in Borrowing. Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the case Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Federal Funds RateLender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting L▇▇▇▇▇ had made Advances to Borrowers. Nothing herein Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrowers shall have waived such Defaulting Lender's default in any way limitwriting, waive or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender to make the Advance to be made by it as part of any Borrowing shall not relieve or any other Lender of its obligationduties and obligations hereunder, if any, or to relieve or excuse the performance by the Loan Party of its duties and obligations hereunder to make Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its Advance on option, upon written notice to Agent, to arrange for a substitute L▇▇▇▇▇ to assume -47- the date Commitment of such BorrowingDefaulting Lender, but no such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute L▇▇▇▇▇, the Defaulting Lender shall have no right to refuse to be responsible replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute L▇▇▇▇▇ (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Loan Parties' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. If any Swing Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then: such Defaulting Lender's Swing Loan Exposure and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders' Pro Rata Share of Revolver Usage plus such Defaulting Lender's Swing Loan Exposure and Letter of Credit Exposure does not exceed the total of all Non-Defaulting Lenders' Revolver Commitments and (y) the conditions set forth in Section 3 are satisfied at such time; if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrowers shall within one Business Day following notice by the Agent (x) first, prepay such Defaulting Lender's Swing Loan Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), and (y) second, cash collateralize such Defaulting Lender's Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrowers shall not be obligated to cash collateralize any Defaulting Lender's Letter of Credit Exposure if such Defaulting Lender is also Issuing Bank; Borrowers shall not be required to pay any Letter of Credit Fees to Agent for the failure account of any other Defaulting Lender pursuant to Section 2.6(b) during the period such Lender is a Defaulting Lender; to the extent the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.3(c)(iv), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.6(b) shall be adjusted in accordance with such Non-Defaulting Lenders' Letter of Credit Exposure; so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to make any Swing Loan and Issuing Bank shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the Advance extent (x) the Defaulting Lender's Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to be made this Section 2.3(c)(iv), (y) the Swing Lender or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the Swing Lender or Issuing Bank, as applicable, and Borrowers to eliminate the Swing Lender's or Issuing Bank's risk with respect to the Defaulting Lender's participation in Swing Loans or Letters of Credit or (z) in the case of Letters of Credit, Borrowers have not cash collateralized such Defaulting Lender's Letter of Credit Exposure; and Agent may release any cash collateral provided by Borrowers pursuant to this Section 2.3(c)(iv) to Issuing Bank and Issuing Bank may apply any such other Lender on cash collateral to the date payment of such Defaulting Lender's Pro Rata Share of any BorrowingLetter of Credit Disbursement that is not reimbursed by Borrowers pursuant to Section 2.11(d). Subject to Section 17.1417.13, no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that L▇▇▇▇▇ having become a Defaulting L▇▇▇▇▇, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting L▇▇▇▇▇'s increased exposure following such reallocation.
Appears in 1 contract
Making of Advances. (ai) Each Unless Agent shall be the sole Lender shallhereunder, before 12:00noon promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City Boston, Massachusetts time) on the Funding Date applicable thereto (or the immediately preceding Business Day if the applicable request for Advance shall have been received more than 24 hours prior to the requested Funding Date and time), by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 3:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(g), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of any Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including an assumption of its Pro Rata Share of the Risk Participation Liability), without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Mercury Air Group Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(C) apply to a requested Borrowing as described in SECTION 2.3(B), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(A), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(I), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; PROVIDED FURTHER, HOWEVER, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Nabi Biopharmaceuticals)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in SECTION
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available (as and when required hereunder to Agent for the Administrative Agent such account of Borrower) the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to, and without Borrower's prior written consent shall not, transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and in the absence of such consent Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower; nor shall a Defaulting Lender be entitled to the sharing of any Borrowingpayments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent as permitted herein. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (-0-). This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the requisite non-Defaulting Lenders and Agent shall have waived such Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this section shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent, such consent not to be unreasonably withheld. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Risk Participation Liability) without any premium or penalty of any kind whatsoever; PROVIDED FURTHER, HOWEVER, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of Borrower's rights or remedies against any such Defaulting Lender's arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Star Telecommunications Inc)
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such ▇▇▇▇▇▇’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Revolving Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower not later than 3:00 p.m. (New York time) on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Custodial Account or to such other account as shall be designated by Borrower to Agent.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such Lender's ratable portion account of such Borrower the amount of that ▇▇▇▇▇▇’s Pro Rata Share of the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Revolving Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Revolving Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Revolving Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its a Revolving Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Swingline Lender on a pro rata basis of any amounts owing by such Defaulting Lender to Swingline Lender hereunder, (B) second, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Revolving Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (D) fourth, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (J) of Section 2.4(b)(i). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.13(a), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (and Borrower shall not be required to pay any fee payable under Section 2.13(a) that otherwise would have been required to have been paid to such Defaulting Lender); provided, that (x) any Commitment of any BorrowingDefaulting Lender may not be increased or extended without the consent of such Defaulting Lender, and (y) any waiver, amendment or modification to this Agreement requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. The provisions of this Section 2.3(c)(iii) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, and Borrower shall have waived, in writing, the application of this Section 2.3(c)(iii) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent); provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that ▇▇▇▇▇▇’s having been a Defaulting Lender. The operation of this Section 2.3(c)(iii) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written notice to Agent, to arrange for a substitute ▇▇▇▇▇▇ to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute ▇▇▇▇▇▇, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute ▇▇▇▇▇▇ (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations), but including all interest, fees (other than any fee payable under Section 2.13(a) relating to any period in which Lender was a Defaulting Lender), and other amounts that may be due and payable in respect thereof; provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.3(c)(iii) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(c)(iii) shall control and govern.
(iv) If a payment is made by the Agent (or its Affiliates) to any Lender in error (as determined by the Agent and whether known to the recipient or not) in excess of the amount of any payment actually made by, or on behalf of, the Borrower if in respect of the Obligations or if a Lender is not otherwise entitled to receive such funds at such time of such payment, which payment was not intended for such Lender under the Loan Documents, then such Lender shall forthwith on demand repay to the Agent the portion of such payment that was made in error (or otherwise not intended (as determined by the Agent) to be received) in same day funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Agent (or its Affiliate) to such Lender to the date such amount is repaid by such Lender to the Agent (or its Affiliate) in same day funds at the ABR from time to time in effect; provided that the Agent shall have notified such Lender of such payment within two (2) Business Days after the making thereof. Each Lender that fails to return such amounts to the Agent within one (1) Business Day after receipt of such notice shall be a Defaulting Lender for all purposes under this Agreement, and each Lender hereby agrees that the Agent (or its Affiliate) is authorized at any time and from time to time thereafter, to the fullest extent permitted by law, to set off and apply any and all deposits of such Lender (general or special, time or demand, provisional or final) at any time held by the Agent (or its Affiliate, including by branches and agencies of the Agent, wherever located) for the account of such Lender against any such amounts. Each Lender irrevocably waives the discharge for value defense in respect of any such payment. Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower and the other Loan Parties shall have no obligations, liabilities or responsibilities for any actions, consequences or remediation (including the repayment or recovery of any amounts) contemplated by this Section 2.3(c)(iv).
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loan, as applicable), upon satisfaction of the applicable
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part its portion of any Borrowing Advance on any Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make available its portion of the requested Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make available its portion of the requested Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment and Total Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Communications & Power Industries Inc)
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) 35 37 on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances or the Term Loan, as applicable, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(g), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent demonstrable error. If such amount is so made available, such payment to Agent shall constitute such Lender's portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part its portion of any Borrowing Advance on any Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make 36 38 available its portion of the requested Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make available its portion of the requested Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's portion of the Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of 37 39 the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (SCB Computer Technology Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.2(c) apply to a requested Borrowing as described in Section 2.2(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.2(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.2(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrowers of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrowers and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitments shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrowers shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitments of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitments of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Group's or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each In the event that Swing Lender shallis not obligated to make a Swing Loan, before 12:00noon (New York City time) on the date then promptly after receipt of such Borrowing, make available a request for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted a Borrowing pursuant to Section 3.03(b)(iv2.3(a)(i), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day or U.S. Government Securities Business Day, as applicable, that is (A) in the amounts so acceptedcase of a Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case of a SOFR Loan, prior to 2:00 p.m. at least three (3) U.S. Government Securities Business Days prior to the requested Funding Date. If Agent has notified the Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then each Lender shall make the amount of such ▇▇▇▇▇▇'s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 1:00 p.m. on the Business Day that is the requested Funding Date. After the Administrative Agent's receipt of the proceeds of such Advances from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds and upon fulfillment equal to such proceeds received by Agent to the Designated Account; provided, that subject to the provisions of Section 2.3(d)(ii), no Lender shall have an obligation to make any Advance, if (1) one or more of the applicable conditions precedent set forth in ArticleVSection 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the Administrative Agent will make requested Borrowing would exceed the Availability on such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid addressFunding Date.
(bii) Unless the Administrative Agent shall have received receives notice from a Lender prior to 12:30 p.m. on the time Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of any a requested Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such Lenderaccount of Borrower the amount of that ▇▇▇▇▇▇'s ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount amount. If, on such date. If and to the extent that requested Funding Date, any such Lender (a "non-performing Lender") shall not have so made such ratable portion remitted the full amount that it is required to make available to Agent in immediately available funds and if Agent has made available to Borrower such amount on the Administrative requested Funding Date, then such Lender shall make the amount of such ▇▇▇▇▇▇'s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, no later than 1:00 p.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such ▇▇▇▇▇▇'s portion of such Borrowing for the Funding Date shall be for Agent's separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrower such amount, then that Lender shall be obligated to immediately remit such amount to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from until the date on which such amount is so remitted. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then such Borrower until the date payment to Agent shall constitute such Lender's Advance for all purposes of this Agreement. If such amount is repaid not made available to Agent on the Administrative Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, at (i)in Borrower shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the case date of such BorrowerBorrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in it being understood that the case amount of such Lender, the Federal Funds Rateinterest shall be payable only once). Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such Borrowingany Funding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Making of Advances. (ai) Each Promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), the Revolving Agent shall notify the Lenders, not later than 1:00 p.m. (California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Subject to Section 2.1(a), each Lender shallshall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to the Revolving Agent in immediately available funds, before 12:00noon to the Agent’s Account, not later than 10:00 a.m. (New York City California time) on the Funding Date applicable thereto. After the Revolving Agent’s receipt of the proceeds of such Advances from all of the Lenders (other than the Defaulting Lenders), the Revolving Agent shall make the proceeds thereof available to the Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by the Revolving Agent to the Designated Account; provided, however, that, subject to the provisions of Section 2.3(d)(ii), the Revolving Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if the Revolving Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless the Revolving Agent receives notice from a Lender prior to 9:00 a.m. (California time) on the date of such a Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to the Administrative Revolving Agent such for the account of the Borrowers the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Revolving Agent may assume that such each applicable Lender has made or will make such portion amount available to the Administrative Revolving Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Revolving Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such applicable Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to the Revolving Agent in immediately available funds and the Revolving Agent in such circumstances has made available to the Borrowers such amount, that Lender shall on the Business Day following such Funding Date make such amount available to the Revolving Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by the Revolving Agent to any Lender with respect to amounts owing under this Section 2.4(c)(ii) shall be conclusive, absent manifest error. If such amount is so made available, such payment to the Revolving Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to the Revolving Agent on the Business Day following the Funding Date, the Revolving Agent will notify the Administrative Borrower of such failure to fund and, upon demand by the Revolving Agent, the non-performing Lender and Borrowers shall pay such Borrower severally agree to repay amount to the Administrative Revolving Agent forthwith on demand such corresponding amount for the Agent’s account, together with interest thereon, thereon for each day from elapsed since the date of such amount is made available to such Borrower until the date such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) The Revolving Agent shall not be obligated to transfer to a Defaulting Lender any payments made by the date Borrowers to the Revolving Agent for such Defaulting Lender’s benefit, and, in the absence of such transfer to such Defaulting Lender, the Revolving Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by the Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to the Borrowers as if such Defaulting Lender had made Advances to the Borrowers. Subject to the foregoing, the Revolving Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by the Revolving Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section 2.3(c)(iii) shall remain effective with respect to such Lender until (A) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (B) the non-Defaulting Lenders, the Revolving Agent, the Administrative Agent and the Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (C) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to the Revolving Agent all amounts owing by the Defaulting Lender in respect thereof. The operation of this Section 2.3(c)(iii) shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by the Borrowers of their duties and obligations hereunder to any Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Administrative Borrower at its option, upon written notice to the Administrative Agent and the Revolving Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to the Administrative Agent and the Revolving Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Group’s or the Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Revolving Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Custodial Account or to such other account as shall be designated by Borrower to Agent.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Revolving Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Revolving Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Revolving Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Revolving Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Swingline Lender on a pro rata basis of any amounts owing by such Defaulting Lender to Swingline Lender hereunder, (B) second, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Revolving Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (D) fourth, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (J) of Section 2.3(b)(i). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.13(a), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (and Borrower shall not be required to pay any fee payable under Section 2.13(a) that otherwise would have been required to have been paid to such Defaulting Lender); provided, that (x) any Commitment of any BorrowingDefaulting Lender may not be increased or extended without the consent of such Defaulting Lender, and (y) any waiver, amendment or modification to this Agreement requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. The provisions of this Section 2.3(c)(iii) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, and Borrower shall have waived, in writing, the application of this Section 2.3(c)(iii) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent); provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. The operation of this Section 2.3(c)(iii) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including all interest, fees (other than any fee payable under Section 2.13(a) relating to any period in which Lender was a Defaulting Lender), and other amounts that may be due and payable in respect thereof; provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.3(c)(iii) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(c)(iii) shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the applicable Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; PROVIDED FURTHER, HOWEVER, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part its portion of any Borrowing Advance on any Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make available its portion of the requested Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make available its portion of the requested Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Silicon Graphics Inc /Ca/)
Making of Advances. (a) Each Lender shall, before 12:00noon 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.0210.2, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's Agent aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such the Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.3, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Sources: Revolving Credit Agreement (North Atlantic Energy Corp /Nh)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City Boston, Massachusetts time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 3:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Factory Card Outlet Corp)
Making of Advances. (a) Each Lender shall, before 12:00noon 12:00 noon (New York City time) on time)on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (a) Each Lender shall, before 12:00noon The Borrower shall give the Agent written notice (which notice shall be irrevocable and effective only upon receipt by the Agent) of each request for an Advance (each such request a "Notice of Borrowing") not later than 12:00 noon (New York City time) on the day which is three (3) Business Days prior to the proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a "Borrowing Date"), and (ii) the principal amount of the proposed Advance. Any such Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, and otherwise appropriately completed. Each Advance shall be in a principal amount of at least $1,000,000 and in integral multiples of $1,000,000 in excess thereof. During the period prior to the Lender Termination Date, the Agent shall promptly notify the Borrower whether CRC has determined to make such Advance. If CRC has determined not to make a proposed Advance or if the Lender Termination Date has occurred prior to the Secondary Lender Termination Date, the Agent shall promptly send notice of the proposed Advance to all of the Secondary Lenders concurrently by telecopier, telex or cable specifying the Borrowing Date for such Advance, each Secondary Lender's Percentage multiplied by the principal amount of such Borrowing, make available Advance and whether the Yield for such Advance during the account of its Applicable Lending Office initial Settlement Period for such Advance is to be calculated based on the Administrative Agent at Eurodollar Rate or the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such BorrowingAlternate Base Rate. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by On any Borrowing Date the Lender or the Secondary Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVshall, the Administrative Agent will make such funds available subject to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) terms and conditions of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionAgreement, make available to the Borrower that made at the request for such Borrowing a corresponding Borrower's Account the principal amount on such dateof the requested Advance in immediately available funds. If and to To the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agentcovered by Section 2.08, the non-performing Borrower shall indemnify CRC, each Secondary Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The loss or expense incurred by them as a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing or as a result of the failure of the Borrower to receive any Lender to make the Advance to be made by it requested in a Notice of Borrowing as part a result of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be satisfied, including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such Advance.
(b) The parties hereto agree that on the Maturity Date of the Advances made by CRC (the "CRC Maturity Date") so long as no Default or Event of Default shall have occurred and be continuing on such date, and subject to the other Lender terms and conditions of this Agreement (other than the obligation to deliver a Notice of Borrowing), the Secondary Lenders shall make an Advance (the "Committed Advance") on such date in a principal amount equal to the outstanding principal amount of the Advances funded by CRC, unless on or prior to the second Business Day preceding the CRC Maturity Date the Borrower has delivered a written notice to the Agent stating that it has elected not to receive such Committed Advance. Notwithstanding anything in this Agreement to the contrary, the principal amount of such Committed Advance shall be made ratably by the Secondary Lenders to the Agent's Account and shall constitute a payment in full by the Borrower in respect of the outstanding principal amount of the Advances maturing on the date CRC Maturity Date and shall be applied by the Agent on the CRC Maturity Date to the outstanding principal amount of any Borrowingthe Advances made by CRC.
Appears in 1 contract
Sources: Revolving Credit Agreement (Liberty Financial Companies Inc /Ma/)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived in accordance with the terms of this Agreement, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; PROVIDED FURTHER, HOWEVER, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Hudson Highland Group Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (En Pointe Technologies Inc)
Making of Advances. (a) Each Lender shall, before 12:00noon 1:00 p.m. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.4(c) apply to a requested Borrowing as described in Section 2.4(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.4(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds of such Advances available to Borrowers on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.4(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived in accordance with Section 15.1, or (2) the requested Borrowing would exceed the Tranche A Advance Availability or Tranche B Availability, as applicable, on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to, and without Borrowers' prior written consent shall not, transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and in the absence of such consent Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lenders Advance was funded by the other members of the Lender Group) or, if so directed by Borrowers and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re- lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrowers shall have waived such Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder or to relieve or excuse the performance by Borrowers of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender's arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part its portion of any Borrowing Advance on any Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make available its portion of the requested Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make available its portion of the requested Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Silicon Graphics Inc /Ca/)
Making of Advances. (a) Each Lender shall, before 12:00noon The Borrower shall give the Agent written notice (which notice shall be irrevocable and effective only upon receipt by the Agent) of each request for an Advance (each such request a "Notice of Borrowing") not later than 2:00 p.m. (New York City time) on the day which is three (3) Business Days prior to the proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a "Borrowing Date"), and (ii) the principal amount of the proposed Advance. Any such Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, and otherwise appropriately completed. Each Advance shall be in a principal amount of at least $1,000,000 and in integral multiples of $1,000,000 in excess thereof. During the period prior to the Lender Termination Date, CRC shall promptly notify the Agent whether it has determined to make a proposed Advance and the Agent shall promptly thereafter notify the Borrower whether CRC has determined to make such Advance. If CRC has determined not to make a proposed Advance or if the Lender Termination Date has occurred prior to the Secondary Lender Termination Date, the Agent shall promptly send notice of the proposed Advance to all of the Secondary Lenders concurrently by telecopier, telex or cable specifying the Borrowing Date for such Advance, each Secondary Lender's Percentage multiplied by the principal amount of such Borrowing, make available Advance and whether the Yield for such Advance is calculated based on the account of its Applicable Lending Office to Eurodollar Rate or the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such BorrowingAlternate Base Rate. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by On any Borrowing Date the Lender or the Secondary Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVshall, the Administrative Agent will make such funds available subject to the Borrower that made terms and conditions of this Agreement and not later than the request for close of business on such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionDate, make available to the Borrower that made at the request for such Borrowing a corresponding Borrower's Account the principal amount on such dateof the requested Advance in immediately available funds. If and to To the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agentcovered by Section 2.08, the non-performing Borrower shall indemnify CRC, each Secondary Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The loss or expense incurred by them as a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing or as a result of the failure of the Borrower to receive any Lender to make the Advance to be made by it requested in a Notice of Borrowing as part a result of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be satisfied, including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such Advance.
(b) The parties hereto agree that on the Maturity Date of the Advances made by CRC (the "CRC Maturity Date") so long as no Default or Event of Default shall have occurred and be continuing on such date, and subject to the other Lender terms and conditions of this Agreement (other than the obligation to deliver a Notice of Borrowing), the Secondary Lenders shall make an Advance (the "Committed Advance") on such date in a principal amount equal to the outstanding principal amount of the Advances funded by CRC, unless on or prior to the second Business Day preceding the CRC Maturity Date the Borrower has delivered a written notice to the Agent stating that it has elected not to receive such Committed Advance. Notwithstanding anything in this Agreement to the contrary, the principal amount of such Committed Advance shall be made ratably by the Secondary Lenders to the Agent's Account and shall constitute a payment in full by the Borrower in respect of the outstanding principal amount of the Advances maturing on the date CRC Maturity Date and shall be applied by the Agent on the CRC Maturity Date to the outstanding principal amount of any Borrowingthe Advances made by CRC.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Belmar Capital Fund LLC)
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Administrative Agent shall notify the Lenders, not later than 1:00 p.m. (New York City time) two (2) Business Days immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Administrative Agent in immediately available funds, to such account of Administrative Agent as Administrative Agent may designate, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Administrative Agent’s receipt of the proceeds of such Revolving Advances, upon satisfaction of the applicable conditions precedent set forth in Article 3 hereof, Administrative Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Revolving Advances received by Administrative Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.3(c), Administrative Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Administrative Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in Article 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived by Administrative Agent, or (2) the requested Borrowing would exceed the Availability of the Borrower requesting the Advance on such Funding Date.
(ii) Unless Administrative Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to the Administrative Agent such for the account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Administrative Agent in immediately available funds and Administrative Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Administrative Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Administrative Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Administrative Agent on the Business Day following the Funding Date, Administrative Agent will notify Borrower of such Borrower until the date such amount is repaid failure to the fund and, upon demand by Administrative Agent, at (i)in Borrower shall pay such amount to Administrative Agent for Administrative Agent’s account, together with interest thereon for each day elapsed since the case date of such BorrowerBorrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Administrative Agent for the date Defaulting Lender’s benefit; nor shall a Defaulting Lender be entitled to the sharing of any Borrowingpayments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Administrative Agent. Administrative Agent may hold and, in its discretion, re-lend to Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (-0-). This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (y) the requisite non-Defaulting Lenders and Administrative Agent shall have waived such Lender’s default in writing. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by Borrower of its duties and obligations hereunder.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Restatement Closing Date or, with respect to any Borrowing after the Restatement Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Making of Advances. (a) Each Lender shall, before 12:00noon 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (a) Each Lender shall, before 12:00noon 1:00 p.m. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.2(a), before 12:00noon Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Custodial Account or to such other account as shall be designated by Borrower to Agent.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of an Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) second, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (C) third, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (J) of Section 2.3(b)(i). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(a), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (and Borrower shall not be required to pay any fee payable under Section 2.10(a) that otherwise would have been required to have been paid to such Defaulting Lender); provided, that (x) any Commitment of any Borrowing.Defaulting Lender may not be increased or extended without the consent of such Defaulting Lender, and (y) any waiver, amendment or modification to this Agreement requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. The provisions of this Section 2.2(c)(iii) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, and Borrower shall have waived, in writing, the application of this Section 2.2(c)(iii) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.2(c)(iv) shall be released to Borrower); provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. The operation of this
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Making of Advances. (ai) Each Lender shallIn the case of an Advance that is not a Swing Loan, before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 2:00 p.m. (New York City time) on the date Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such BorrowingLender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, Agent shall make the proceeds thereof available for to Administrative Borrower on the account of its Applicable Lending Office applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the Administrative provisions of Section 2.3(d)(ii), Agent at shall not request any Lender to make, and no Lender shall have the Administrative Agent's address referred obligation to in Section 10.02make, in same day funds, such Lender's portion of such Borrowing. Contract Advances any Advance if Agent shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender have actual knowledge that (1) one or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment more of the applicable conditions precedent set forth in ArticleVSection 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the Administrative Agent will make requested Borrowing would exceed the Availability on such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid addressFunding Date.
(bii) Unless the Administrative Agent shall have received receives notice from a Lender prior to the time of any Borrowing 12:00 p.m. (New York time) on a Funding Date, that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent mayshall, in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the Funding Date for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent (such acceptance not to be unreasonably withheld). In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each In the event that Swing Lender shallis not obligated to make a Swing Loan, before 12:00noon (New York City time) on the date then promptly after receipt of such Borrowing, make available a request for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted a Borrowing pursuant to Section 3.03(b)(iv2.3(a)(i), Agent shall notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day that is (A) in the amounts so acceptedcase of a Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case of a LIBOR Rate Loan, prior to 2:00 p.m. at least three (3) Business Days prior to the requested Funding Date. If Agent has notified the Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. on the Business Day that is the requested Funding Date. After the Administrative Agent's ’s receipt of the proceeds of such Advances from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds and upon fulfillment equal to such proceeds received by Agent to the Designated Account; provided, that subject to the provisions of Section 2.3(d)(ii), no Lender shall have an obligation to make any Advance, if (1) one or more of the applicable conditions precedent set forth in ArticleVSection 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the Administrative Agent will make requested Borrowing would exceed the Availability on such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid addressFunding Date.
(bii) Unless the Administrative Agent shall have received receives notice from a Lender prior to 12:30 p.m. on the time Business Day that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the Lenders of any a requested Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount amount. If, on such date. If and to the extent that requested Funding Date, any such Lender (a "non-performing Lender") shall not have so made such ratable portion remitted the full amount that it is required to make available to Agent in immediately available funds and if Agent has made available to Borrower such amount on the Administrative requested Funding Date, then such Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, no later than 1:00 p.m. on the Business Day that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such Lender’s portion of such Borrowing for the Funding Date shall be for Agent’s separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrower such amount, then that Lender shall be obligated to immediately remit such amount to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from until the date on which such amount is so remitted. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 2.3(c)(ii) shall be conclusive, absent manifest error. If the amount that a Lender is required to remit is made available to Agent, then such Borrower until the date payment to Agent shall constitute such Lender’s Advance for all purposes of this Agreement. If such amount is repaid not made available to Agent on the Administrative Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, at (i)in Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the case date of such BorrowerBorrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in it being understood that the case amount of such Lender, the Federal Funds Rateinterest shall be payable only once). Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such Borrowingany Funding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Making of Advances. (a) Each Lender shall, before 12:00noon 1:00 p.m. (New York City time) on the date of such BorrowingFunding Date, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of the Borrowing to be made on such Borrowingdate. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any the Borrowing to be made on the Funding Date that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing Funding Date in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "nonNON-performing LenderPERFORMING LENDER") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part of any the Borrowing on the Funding Date shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Sources: Term Loan Agreement (North Atlantic Energy Corp /Nh)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loan, as applicable) upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.4(c) apply to a requested Borrowing as described in SECTION 2.4(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.4(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.4(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to, and without Borrower's prior written consent shall not, transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and in the absence of such consent Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lenders Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default has occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Borrowing.Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute
Appears in 1 contract
Sources: Loan and Security Agreement (3do Co)
Making of Advances. In the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (a) Each Lender shall, before 12:00noon (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date. Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date. Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Elgin National Industries Inc)
Making of Advances. (a) Each Lender shall, before 12:00noon 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments pro rata and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.04, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Sources: Revolving Credit Agreement (North Atlantic Energy Corp /Nh)
Making of Advances. (a) Each Lender Bank shall, before 12:00noon 12:00 noon (New York City time) on the date of such each Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's its address referred to in Section 10.028.02, in same day funds, such LenderBank's portion of such Borrowing. Contract Committed Advances shall be made by the Lenders ratably in accordance with their several Commitments Banks pro rata and Competitive Advances shall be made by the Lender Bank or Lenders Banks whose Competitive Bids competitive bids therefor have been accepted by the Borrower pursuant to Section 3.03(b)(iv2.03(iii)(B) in the amounts so accepted. After If the Administrative Agent's receipt of Agent has received all such funds and upon fulfillment all of the applicable conditions set forth in ArticleVArticles II and III have been fulfilled, the Administrative Agent will promptly make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender Bank prior to the time date of any Borrowing that such Lender Bank will not make available to the Administrative Agent such LenderBank's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender Bank has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.042.04, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") Bank shall not have so made such ratable portion available to the Administrative Agent, such Bank and the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in in the case of such LenderBank, the Federal Funds Rate. Nothing herein If such Bank shall in any way limitrepay to the Agent such corresponding amount, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lendersuch amount so repaid shall constitute such Bank's Advance as part of such Borrowing for purposes of this Agreement.
(c) The failure of any Lender Bank to make the Advance to be made by it as part of any Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the Advance to be made by such other Lender Bank on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City Georgia time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (Georgia time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 11:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds of such Advances available to Borrowers on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to the Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of Borrowers on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and Agent may in its discretion transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lenders Advance was funded by the other members of the Lender Group) or, if so requested by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers; nor shall a Defaulting Lender be entitled to the sharing of any Borrowing.payments hereunder. Amounts payable to a Defaulting Lender
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon (New York City then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m.(California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to the applicable Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to such Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of the applicable Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the such Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made its full amount available to Agent in immediately available funds and Agent in such ratable portion circumstances has made available to the Administrative applicable Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify the applicable Borrower of such failure to fund and, upon demand by Agent, such Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by a Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by a Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to such Borrower as if such Defaulting Lender had made Advances to such Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to a Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and the applicable Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.2(c) apply to a requested Borrowing as described in Section 2.2(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.2(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.2(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender and that were required to be, but were not, paid by the Defaulting Lender, (B) second, to Issuing Bank, to the extent of the portion of a Letter of Credit Disbursement that was required to be, but was not, paid by the Defaulting Lender, (C) third, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of an Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (CD) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (DE) from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (M) of Section 2.3(b)(i). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(a), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (and Borrower shall not be required to pay any fee payable under Section 2.10(a) that otherwise would have been required to have been paid to such Defaulting Lender); provided, that (x) any Commitment of any BorrowingDefaulting Lender may not be increased or extended without the consent of such Defaulting Lender, and (y) any waiver, amendment or modification to this Agreement requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. The provisions of this Section 2.2(c)(iii) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Bank, and Borrower shall have waived, in writing, the application of this Section 2.2(c)(iii) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.2(c)(iv) shall be released to Borrower); provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. The operation of this Section 2.2(c)(iii) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees (other than any fee payable under Section 2.10(a) relating to any period in which Lender was a Defaulting Lender, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit), and other amounts that may be due and payable in respect thereof; provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.2(c)(iii) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.2(c)(iii) shall control and govern.
(iv) If any Swing Loan or Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:
(A) such Defaulting Lender’s Pro Rata Share of the Swing Loans and Letter of Credit Exposure shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders’ Pro Rata Shares of the Advances (including the Swing Loans) plus such Defaulting Lender’s Pro Rata Share of such Swing Loans and Letter of Credit Exposure, does not exceed the total of all Non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 3.3 are satisfied at such time;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrower shall within one (1) Business Day following notice by the Agent (x) first, prepay such Defaulting Lender’s Pro Rata Share of the Swing Loan (after giving effect to any partial reallocation pursuant to clause (A) above); and (y) second, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrower shall not be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also the Issuing Bank;
(C) if Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.2(c)(iv), Borrower shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.5(f) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(D) to the extent the Letter of Credit Exposure of the Non-Defaulting Lenders is reallocated pursuant to this Section 2.2(c)(iv), then the Letter of Credit Fees payable to the Non-Defaulting Lenders pursuant to Section 2.5(f) shall be adjusted in accordance with such Non-Defaulting Lenders’ Letter of Credit Exposure;
(E) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.2(c)(iv), then, without prejudice to any rights or remedies of the Issuing Bank or any Lender hereunder, all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.5(f) with respect to such portion of such Letter of Credit Exposure shall instead be payable to the Issuing Bank until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated;
(F) so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to make any Swing Loan and the Issuing Bank shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the extent (x) the Defaulting Lender’’s Pro Rata Share of such Swing Loans or Letter of Credit cannot be reallocated pursuant to this Section 2.2(c)(iv) or (y) the Swing Lender or Issuing Bank, as applicable, has not otherwise entered into arrangements reasonably satisfactory to the Swing Lender or Issuing Bank, as applicable, and Borrower to eliminate the Swing Lender’’s or Issuing Bank’s risk with respect to the Defaulting Lender’’s participation in Swing Loans or Letters of Credit; and
(G) Agent may release any cash collateral provided by Borrower pursuant to this Section 2.2(c)(iv) to the Issuing Bank and the Issuing Bank may apply any such cash collateral to the payment of such Defaulting Lender’s Pro Rata Share of any Letter of Credit Disbursement that is not reimbursed by Borrower pursuant to Section 2.14(d).
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to the applicable Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of the applicable Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the such Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made its full amount available to Agent in immediately available funds and Agent in such ratable portion circumstances has made available to the Administrative applicable Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify the applicable Borrower of such failure to fund and, upon demand by Agent, such Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by the date Borrower to Agent for the Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by a Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to such Borrower as if such Defaulting Lender had made Advances to such Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to a Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and the Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. The Borrower shall give the Agent written notice (awhich notice shall be irrevocable (unless the Borrower shall have delivered a Withdrawal Notice to the Agent in accordance with the provisions of this Section 2.02) Each Lender shall, before 12:00noon and effective only upon receipt by the Agent) of each request for an Advance (each such request a “Notice of Borrowing”) not later than 12:00 noon (New York City time) on the day which is one (1) Business Day prior to the proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a “Borrowing Date”), and (ii) the principal amount of the proposed Advance. Any such Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, and otherwise appropriately completed, and each Advance requested under such Notice of Borrowing (together with all other advances requested pursuant to such Notice of Borrowing) shall be in a principal amount of at least $1,000,000 and in integral multiples of $100,000 in excess thereof. During the period prior to the Termination Date, each Conduit Lender shall promptly notify the Agent whether it has determined to make a proposed Advance, and the Agent shall promptly thereafter notify the Borrower whether any of the Conduit Lenders have determined to make such Advance. If the Conduit Lenders have determined not to make a proposed Advance, the Agent shall promptly send notice thereof (each such notice a “Non-Funding Notice”) to the Borrower by telecopier, telex or cable not later than 9:00 a.m. (New York City time) on the proposed Borrowing Date. Upon receipt of a Non-Funding Notice, the Borrower may withdraw its Notice of Borrowing without incurring any expenses under Section 2.08 only so long as the Borrower shall have delivered to the Agent written notice withdrawing such Notice of Borrowing (which notice shall be irrevocable and effective only upon receipt by the Agent, and each such withdrawal notice being a “Withdrawal Notice”) within three (3) hours following its receipt of such BorrowingNon-Funding Notice (which three hours shall not include any period after 5:00 p.m. (New York City time) on any Business Day and prior to 8:00 a.m. (New York City time) on the next succeeding Business Day), and in any event not later than 12:00 noon (New York City time) on such proposed Borrowing Date. If the Conduit Lenders have determined not to make available for a proposed Advance and the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances Borrower shall be made by the Lenders ratably not have issued a Withdrawal Notice in accordance with their several Commitments and Competitive Advances the provisions of the preceding sentence, the Agent shall be made promptly send notice of the proposed Advance to all of the Secondary Lenders concurrently by telecopier, telex or cable specifying (1) the Borrowing Date for such Advance, (2) each Secondary Lender’s Percentage multiplied by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt principal amount of such funds Advance, and upon fulfillment of (3) whether the Yield for such Advance is calculated based on the Eurodollar Rate or the Alternate Base Rate. On any Borrowing Date the applicable conditions set forth in ArticleVConduit Lenders or the Secondary Lenders shall, the Administrative Agent will make such funds available subject to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) terms and conditions of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionAgreement, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and Borrower’s Account the principal amount of the requested Advance in immediately available funds no later than 4:00 p.m. (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing LenderNew York City time).
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (BlackRock Defined Opportunity Credit Trust)
Making of Advances. (a) Each Lender shall, before 12:00noon The Borrower shall give the Agent written notice (which notice shall be irrevocable and effective only upon receipt by the Agent) of each request for an Advance (each such request a "Notice of Borrowing") not later than 2:00 p.m. (New York City time) on the day which is three (3) Business Days prior to the proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a "Borrowing Date"), and (ii) the principal amount of the proposed Advance. Any such Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, and otherwise appropriately completed. Each Advance shall be in a principal amount of at least $1,000,000 and in integral multiples of $1,000,000 in excess thereof. During the period prior to the Lender Termination Date, CAFCO shall promptly notify the Agent whether it has determined to make a proposed Advance and the Agent shall promptly thereafter notify the Borrower whether CAFCO has determined to make such Advance. If CAFCO has determined not to make a proposed Advance, the Agent shall promptly send notice of the proposed Advance to all of the Secondary Lenders concurrently by telecopier, telex or cable specifying the Borrowing Date for such Advance, each Secondary Lender's Percentage multiplied by the principal amount of such Borrowing, make available Advance and whether the Yield for such Advance is calculated based on the account of its Applicable Lending Office to Eurodollar Rate or the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such BorrowingAlternate Base Rate. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by On any Borrowing Date the Lender or the Secondary Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVshall, the Administrative Agent will make such funds available subject to the Borrower that made terms and conditions of this Agreement and not later than the request for close of business on such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionDate, make available to the Borrower that made at the request for such Borrowing a corresponding Borrower's Account the principal amount on such dateof the requested Advance in immediately available funds. If and to To the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agentcovered by Section 2.08, the non-performing Borrower shall indemnify CAFCO, each Secondary Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The loss or expense incurred by them as a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing or as a result of the failure of the Borrower to receive any Lender to make the Advance to be made by it requested in a Notice of Borrowing as part a result of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be satisfied, including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such Advance.
(b) The parties hereto agree that on the Maturity Date of the Advances made by CAFCO (the "CAFCO Maturity Date") so long as no Default or Event of Default shall have occurred and be continuing on such date, and subject to the other Lender terms and conditions of this Agreement (other than the obligation to deliver a Notice of Borrowing), the Secondary Lenders shall make an Advance (the "Committed Advance") on such date in a principal amount equal to the outstanding principal amount of the Advances funded by CAFCO, unless on or prior to the second Business Day preceding the CAFCO Maturity Date the Borrower has delivered a written notice to the Agent stating that it has elected not to receive such Committed Advance. Notwithstanding anything in this Agreement to the contrary, the principal amount of such Committed Advance shall be made ratably by the Secondary Lenders to the Agent's Account and shall constitute a payment in full by the Borrower in respect of the outstanding principal amount of the Advances maturing on the date CAFCO Maturity Date and shall be applied by the Agent on the CAFCO Maturity Date to the outstanding principal amount of any Borrowingthe Advances made by CAFCO.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Belport Capital Fund LLC)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Revolver Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; PROVIDED FURTHER, HOWEVER, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.2(c) apply to a requested Borrowing as described in Section 2.2(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.2(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.2(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Swing Lender to the extent of any Swing Loans that were made by Swing Lender and that were required to be, but were not, paid by the Defaulting Lender, (B) second, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of an Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (D) from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (M) of Section 2.3(b)(i). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.10(a), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (and Borrower shall not be required to pay any fee payable under Section 2.10(a) that otherwise would have been required to have been paid to such Defaulting Lender); provided, that (x) any Commitment of any BorrowingDefaulting Lender may not be increased or extended without the consent of such Defaulting Lender, and (y) any waiver, amendment or modification to this Agreement requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. The provisions of this Section 2.2(c)(iii) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, and Borrower shall have waived, in writing, the application of this Section 2.2(c)(iii) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.2(c)(iv) shall be released to Borrower); provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. The operation of this Section 2.2(c)(iii) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including all interest, fees (other than any fee payable under Section 2.10(a) relating to any period in which Lender was a Defaulting Lender), and other amounts that may be due and payable in respect thereof; provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.2(c)(iii) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.2(c)(iii) shall control and govern.
(iv) If any Swing Loan is outstanding at the time that a Lender becomes a Defaulting Lender then:
(A) such Defaulting Lender’s Pro Rata Share of the Swing Loans shall be reallocated among the Non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all Non-Defaulting Lenders’ Pro Rata Shares of the Advances (including the Swing Loans) plus such Defaulting Lender’s Pro Rata Share of such Swing Loans, does not exceed the total of all Non-Defaulting Lenders’ Commitments and (y) the conditions set forth in Section 3.3 are satisfied at such time;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrower shall within one (1) Business Day following notice by the Agent, prepay such Defaulting Lender’s Pro Rata Share of the Swing Loan (after giving effect to any partial reallocation pursuant to clause (A) above); and
(C) so long as any Lender is a Defaulting Lender, the Swing Lender shall not be required to make any Swing Loan to the extent (x) the Defaulting Lender’s Pro Rata Share of such Swing Loans cannot be reallocated pursuant to this Section 2.2(c)(iv) or (y) the Swing Lender has not otherwise entered into arrangements reasonably satisfactory to the Swing Lender and Borrower to eliminate the Swing Lender’s risk with respect to the Defaulting Lender’s participation in Swing Loans.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Revolving Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower not later than 3:00 p.m. (New York time) on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Custodial Account or to such other account as shall be designated by Borrower to Agent.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Revolving Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Revolving Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Revolving Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Revolving Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Revolving Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Swingline Lender on a pro rata basis of any amounts owing by such Defaulting Lender to Swingline Lender hereunder, (B) second, to each Non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Revolving Advance (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.3) as if such Defaulting Lender had made its portion of Advances (or other funding obligations) hereunder, and (D) fourth, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (J) of Section 2.4(b)(i). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.13(a), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (and Borrower shall not be required to pay any fee payable under Section 2.13(a) that otherwise would have been required to have been paid to such Defaulting Lender); provided, that (x) any Commitment of any BorrowingDefaulting Lender may not be increased or extended without the consent of such Defaulting Lender, and (y) any waiver, amendment or modification to this Agreement requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender. The provisions of this Section 2.3(c)(iii) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Agent, and Borrower shall have waived, in writing, the application of this Section 2.3(c)(iii) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent); provided, that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; provided further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Non-Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. The operation of this Section 2.3(c)(iii) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations), but including all interest, fees (other than any fee payable under Section 2.13(a) relating to any period in which Lender was a Defaulting Lender), and other amounts that may be due and payable in respect thereof; provided, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.3(c)(iii) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.3(c)(iii) shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Hercules Capital, Inc.)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Advanced Lighting Technologies Inc)
Making of Advances. (ai) Each Lender shallIn the event that Foothill Group Agent shall elect to have the terms of this Section 2.1(f) apply to a requested Borrowing as described in Section 2.1(e), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.1(d), Foothill Group Agent shall notify the Lenders, not later than 11:00 a.m. (New York City California time) on the Business Day that is the requested Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Foothill Group Agent in immediately available funds, to such account of Foothill Group Agent as Foothill Group Agent may designate, not later than 12:00 p.m. (California time) on the Funding Date applicable thereto. After Foothill Group Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Foothill Group Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Foothill Group Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.1(l), Foothill Group Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Foothill Group Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of Borrower on such Funding Date.
(ii) Unless Foothill Group Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Foothill Group Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Foothill Group Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Foothill Group Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Foothill Group Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Foothill Group Agent in immediately available funds and Foothill Group Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Foothill Group Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Foothill Group Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Foothill Group Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Foothill Group Agent on the Business Day following the Funding Date, Foothill Group Agent will notify Borrower of such failure to fund and, upon demand by Foothill Group Agent, Borrower until shall pay such amount to Foothill Group Agent for Foothill Group Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Foothill Group Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Foothill Group Agent for the date Defaulting Lender's benefit; nor shall a Defaulting Lender be entitled to the sharing of any Borrowingpayments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Foothill Group Agent. Foothill Group Agent may hold and, in its discretion, re-lend to Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (-0-). This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (y) the requisite non- Defaulting Lenders and Foothill Group Agent shall have waived such Lender's default in writing. The operation of this section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by Borrower of its duties and obligations hereunder.
Appears in 1 contract
Making of Advances. Agent shall immediately deliver to Lenders the Request for Term Advance or Request for Revolving Advance, as applicable, upon its receipt of either of same, and advise each Lender of its pro rata share to be funded. At least two (2) Business Days prior to each Advance, Agent shall notify each Lender of the interest rate set for each Advance, and thereafter shall notify each Lender at least two (2) Business Days prior to each change in such rate.
(a) Each Lender shall, before 12:00noon 12:00 noon (New York City time) on the date of such Borrowingeach Advance, make available for the account of its Applicable Lending Office deliver to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, 10.08 a confirmation of availability of funds for such Lender's portion of such BorrowingAdvance. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedpro rata. After the Administrative Agent's receipt of such funds confirmation and upon fulfillment of the applicable conditions set forth in ArticleVprecedent to making Advances hereunder, the Administrative Agent will make such funds available to the Borrower that made for transfer to the request for such Borrowing Borrower's operating account, No. 8470003214 at USBank, Las Vegas, Nevada (ABA No. 121201694) (the Administrative Agent's aforesaid address"Oper▇▇▇▇▇ ▇▇▇ount").
(b) Unless the Administrative Agent shall have received written notice from a Lender prior to the time date of any Borrowing that Advance stating the reason why such Lender will is not able to make available to the Administrative Agent such Lender's ratable portion Percentage of such BorrowingAdvance, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing Advance in accordance with subsection(asubsection (a) of this Section 3.042.04, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rateamount. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the its portion of an Advance 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 Advance on the date of such BorrowingAdvance, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date its portion of any Borrowingan Advance.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Alta Gold Co/Nv/)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to the Borrower designated by Borrower Representative on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to such Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower Representative of such Borrower until failure to fund and, upon written demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in without prejudice to any way limit, waive or otherwise reduce any claims that any party hereto rights Borrowers may have against any non- performing Lender.
(c) such Lender that did not provide its Pro Rata Share of the applicable Borrower. The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower Representative and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower Representative shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower Representative at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Alpine Group Inc /De/)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Third Restatement Closing Date or, with respect to any Borrowing after the Third Restatement Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Acme Communications Inc)
Making of Advances. (ai) In the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (California time) on the Business Day immediately preceding the Funding Date applicable thereto by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shallshall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, before 12:00noon to Agent's Account, not later than 10:00 a.m. (New York City California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 9:00 a.m. (California time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Defaulting Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance (or portion of the Term Loan, as applicable) on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising (or portion of the Term Loan, as applicable) composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make any Advance (or portion of the Advance to be made by it Term Loan, as part of applicable) on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance (or portion of the Term Loan, as applicable) on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default shall have occurred and be continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain the same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.2(c) apply to a requested Borrowing as described in Section 2.2(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.2(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.2(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, prior to 12:00 noon (New York time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Horizon Technology Finance Corp)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrowers shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default, Unmatured Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of Borrower on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit; nor shall a Defaulting Lender be entitled to the sharing of any Borrowingpayments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (-0-). This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (y) the requisite non-Defaulting Lenders and Agent shall have waived such Lender's default in writing. The operation of this section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by Borrower of its duties and obligations hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (Phonetel Technologies Inc)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.1(e) apply to a requested Borrowing as described in Section 2.1(d), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.1(c), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.1(k), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of the Borrower requesting the Advance on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit; nor shall a Defaulting Lender be entitled to the sharing of any Borrowingpayments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re- lend to Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (-0-). This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (y) the requisite non-Defaulting Lenders and Agent shall have waived such Lender's default in writing. The operation of this section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by Borrower of its duties and obligations hereunder.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part its portion of any Borrowing Advance on any Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make available its portion of the requested Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make its portion of the requested Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's portion of the Advance was not funded by the Lender Group), retain the same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (E Spire Communications Inc)
Making of Advances. (a) Each Lender shall, before 12:00noon 1:00 P.M. (New York City Charlotte, North Carolina time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02Account, in same day funds, such Lender's portion of such Borrowing. Contract Swing Line Advances shall be made by the Swing Line Bank. Revolving Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv3.3(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVSection 7.2, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Borrower's Account, provided, however, that in the case of any Revolving Borrowing or Competitive Bid Borrowing the Administrative Agent's aforesaid addressAgent shall first make a portion of such funds equal to the aggregate principal amount of any Swing Line Advances available, plus interest accrued and unpaid thereon, to and as of such date, to the Swing Line Bank for the repayment of such Swing Line Advances.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.4, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "nonNON-performing LenderPERFORMING LENDER") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such the Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (a) Each Lender shall, before 12:00noon The Borrower shall give the Agent written notice (which notice shall be irrevocable and effective only upon receipt by the Agent) of each request for an Advance (each such request a "Notice of Borrowing") not later than 12:00 noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(ivwhich is three (3) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender Business Days prior to the time proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a "Borrowing Date"), and (ii) the principal amount of the proposed Advance. Any such Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, and otherwise appropriately completed. Each Advance shall be in a principal amount of at least $1,000,000 and in integral multiples of $1,000,000 in excess thereof. During the period prior to the Lender Termination Date, CRC shall promptly notify the Agent whether it has determined to make a proposed Advance and the Agent shall promptly thereafter notify the Borrower whether CRC has determined to make such Advance. If CRC has determined not to make a proposed Advance or if the Lender Termination Date has occurred prior to the Secondary Lender Termination Date, the Agent shall promptly send notice of the proposed Advance to all of the Secondary Lenders concurrently by telecopier, telex or cable specifying the Borrowing Date for such Advance, each Secondary Lender's Percentage multiplied by the principal amount of such Advance and whether the Yield for such Advance is calculated based on the Eurodollar Rate or the Alternate Base Rate. On any Borrowing that such Lender will not make available Date CRC or the Secondary Lenders shall, subject to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) terms and conditions of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionAgreement, make available to the Borrower that made at the request for such Borrowing a corresponding Borrower's Account the principal amount on such dateof the requested Advance in immediately available funds. If and to To the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agentcovered by Section 2.08, the non-performing Borrower shall indemnify CRC, each Secondary Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The loss or expense incurred by them as a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing or as a result of the failure of the Borrower to receive any Lender to make the Advance to be made by it requested in a Notice of Borrowing as part a result of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be satisfied, including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such Advance.
(b) The parties hereto agree that on the Maturity Date of the Advances made by CRC (the "CRC Maturity Date") so long as no Default or Event of Default shall have occurred and be continuing on such date, and subject to the other Lender terms and conditions of this Agreement (other than the obligation to deliver a Notice of Borrowing), the Secondary Lenders shall make an Advance (the "Committed Advance") on such date in a principal amount equal to the outstanding principal amount of the Advances funded by CRC, unless on or prior to the Second Business Day preceding the CRC Maturity Date the Borrower has delivered a written notice to the Agent stating that it has elected not to receive such Committed Advance. Notwithstanding anything in this Agreement to the contrary, the principal amount of such Committed Advance shall be made ratably by the Secondary Lenders to the Agent's Account and shall constitute a payment in full by the Borrower in respect of the outstanding principal amount of the Advances maturing on the date CRC Maturity Date and shall be applied by the Agent on the CRC Maturity Date to the outstanding principal amount of any Borrowingthe Advances made by CRC.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Managed High Yield Plus Fund Inc)
Making of Advances. (a) Each Lender shall, before 12:00noon (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non'NON-performing Lender"PERFORMING LENDER') shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(g), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent demonstrable error. If such amount is so made available, such payment to Agent shall constitute such Lender's portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it as part its portion of any Borrowing Advance on any Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make available its portion of the requested Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make available its portion of the requested Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's portion of the Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City Atlanta, Georgia time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 1:00 p.m. (Atlanta, Georgia time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Revolver Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (World Airways Inc /De/)
Making of Advances. (a) Each Lender shall, before 12:00noon 1:00 p.m. (New York City time) on the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedCommitments. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVArticle V, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(asubsection (a) of this Section 3.043.03, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in i) in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in ii) in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- non-performing Lender.
(c) The failure of any Lender to make the Advance 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 Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Activation Date or, with respect to any Borrowing after the Activation Date, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on the date of any BorrowingFunding Date.
Appears in 1 contract
Sources: Loan and Security Agreement (Hudson Highland Group Inc)
Making of Advances. (a) Each Lender shall, before 12:00noon The Borrower shall give the Agent written notice (which notice shall be irrevocable and effective only upon receipt by the Agent) of each request for a borrowing (each such request a “Notice of Borrowing”) not later than 12:00 noon (New York City time) on the day which is two (2) Business Days prior to the proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a “Borrowing Date”), and (ii) the principal amount of the proposed borrowing (the “Requested Amount”). Any such Notice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, signed by a Responsible Officer of the Borrower and otherwise appropriately completed. The Requested Amount shall be in a principal amount of at least $5,000,000 and in integral multiples of $100,000 in e xcess thereof. During the period prior to the Lender Termination Date, each Conduit Lender shall promptly notify the Agent whether it has determined to make a proposed Advance and, if so the principal amount of such Borrowing, make available for Advance and the account Agent shall promptly thereafter notify the Borrower (i) if the full amount of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall Requested Amount will not be made by the Lenders ratably in accordance with their several Commitments Conduit Lenders, and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv(ii) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVprincipal amount, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time if any, of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower that made the request for such Borrowing a corresponding amount on such date. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the Advance to be made by it each Conduit Lender. If the Conduit Lenders have determined not to make the Advances in a principal amount equal to the full Requested Amount, the Agent shall promptly send notice of the proposed borrowing to all of the Secondary Lenders concurrently specifying the Borrowing Date for such borrowing, each Secondary Lender’s Percentage multiplied by the Requested Amount not funded by the Conduit Lenders and whether the Yield for such Advances shall be calculated based on the Eurodollar Rate or the Alternate Base Rate. On any Borrowing Date the Conduit Lenders or the Seco ndary Lenders shall, subject to the terms and conditions of this Agreement, remit to the payment account specified in the applicable Notice of Borrowing their respective portions of the Requested Amount in immediately available funds. To the extent not covered by Section 2.08, the Borrower shall indemnify the Conduit Lenders, each Secondary Lender and the Agent against any loss (other than lost profits) or reasonable expense incurred by them as part a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing shall not relieve or as a result of the failure of the Borrower to receive any other Lender Advance requested in a Notice of its obligation, if any, hereunder to make its Advance on the date Borrowing as a result of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be made satisfied, including, without limitation, any such loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such other Lender Advance.
(b) The parties hereto agree that on the Lender Termination Date so long as no Default or Event of Default shall have occurred and be continuing on such date, and subject to the other terms and conditions of this Agreement (other than the obligation to deliver a Notice of Borrowing), the Secondary Lenders shall make Advances (the “Committed Advances”) on such date in an aggregate principal amount equal to the outstanding principal amount of any Borrowingthe Advances funded by the Lenders, unless on or prior to the second Business Day preceding the Lender Termination Date the Borrower has delivered a written notice to the Agent stating that it has elected not to receive such Committed Advance. Notwithstanding anything in this Agreement to the contrary, the principal amount of such Committed Advances shall be made ratably by the Secondary Lenders to the Agent’s Account and shall constitute a pa yment in full by the Borrower in respect of the outstanding principal amount of the Advances maturing on the Lender Termination Date and shall be applied by the Agent on the Lender Termination Date to the outstanding principal amount of the Advances funded by the Lenders.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Xl Capital LTD)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 4:00 p.m. (New York City Atlanta time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (Atlanta time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, however, that, subject to the provisions of Sections 2.3(e) and 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion ’s Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, if Borrower does not so direct Agent (and to the extent the Defaulting Lender’s Advance was not funded by the Lender Group), Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Orbital Sciences Corp /De/)
Making of Advances. (a) Each Lender shall, before 12:00noon The Borrower shall give each Managing Agent written notice (which notice shall be irrevocable (unless the Borrower shall have delivered a Withdrawal Notice to both Managing Agents in accordance with the provisions of this Section 2.02) and effective only upon receipt by such Managing Agent) of each request for Advances (each such request a "Notice of Borrowing") not later than 12:00 noon (New York City time) on the day which is two Business Days prior to the proposed borrowing date, which notice shall specify (i) the proposed borrowing date therefor (each such date, a "Borrowing Date"), and (ii) the aggregate principal amount of the proposed borrowing (the "Requested Amount"). Any such BorrowingNotice of Borrowing shall be substantially in the form of Exhibit B hereto, dated the date such request is being made, signed by a Responsible Officer of the Borrower and otherwise appropriately completed. The Requested Amount specified in any Notice or Borrowing shall be at least $2,000,000 and in integral multiples of $1,000,000 in excess thereof. The Borrower shall not request more than two (2) borrowings in any calendar week. During the period prior to the Lender Termination Date, each Conduit Lender shall promptly notify its related Managing Agent whether it has determined to make available for an Advance in the account amount of its Applicable Lending Office Pro Rata Share of the Requested Amount and such Managing Agent shall promptly thereafter notify the Borrower whether its related Conduit Lender has determined to make such Advance. If prior to the Administrative Lender Termination Date a Conduit Lender has declined to make such proposed Advance, the related Managing Agent at shall promptly send notice thereof (each such notice a "Non-Funding Notice") to the Administrative Borrower no later than 5:00 p.m. (New York City time) on the Business Day immediately preceding the proposed Borrowing Date. Upon receipt of a Non-Funding Notice from any Managing Agent's address referred , the Borrower may withdraw its Notice of Borrowing to in both Managing Agents without incurring any cost, penalty, expense or other liability (including under this Section 10.02, in same day funds, 2.02 or Section 2.08 or as a Liquidation Fee) provided that the Borrower shall have delivered to both Managing Agents written notice withdrawing such Lender's portion Notice of such Borrowing. Contract Advances Borrowings (which notice shall be made irrevocable and effective only upon receipt by the Lenders ratably applicable Agent, and each such withdrawal notice being a "Withdrawal Notice") not later than 12:00 noon (New York City time) on such proposed Borrowing Date. If a Conduit Lender has declined to make a proposed Advance and the Borrower shall not have issued a Withdrawal Notice to both Managing Agents in accordance with their several Commitments and Competitive Advances the provisions of the preceding sentence, the related Managing Agent shall be made promptly send notice of the proposed borrowing to each of the Related Secondary Lenders of such Conduit Lender concurrently by telecopy, telex or cable specifying the Borrowing Date for such borrowing, each Secondary Lender's Secondary Lender Percentage multiplied by the related Conduit Lender's Pro Rata Share of the Requested Amount and whether the Yield for such Advance is calculated based on the Eurodollar Rate or the Alternate Base Rate. On each Borrowing Date each Conduit Lender or its Related Secondary Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleVshall, the Administrative Agent will make such funds available subject to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available to the Administrative Agent such Lender's ratable portion of such Borrowing, the Administrative Agent may assume that such Lender has made such portion available to the Administrative Agent on the date of such Borrowing in accordance with subsection(a) terms and conditions of this Section 3.04, and the Administrative Agent may, in reliance upon such assumptionAgreement, make available to the Borrower that made at the request for Borrower's Account Advances in an amount equal to such Borrowing a corresponding amount on such dateConduit Lender's Pro Rata Share of the Requested Amount in immediately available funds. If and to To the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion available to the Administrative Agentcovered by Section 2.08, the non-performing Borrower shall indemnify each Conduit Lender, each Secondary Lender and such Borrower severally agree to repay to the Administrative each Managing Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Administrative Agent, at (i)in the case of such Borrower, the interest rate applicable at the time to Advances comprising such Borrowing and (ii)in the case of such Lender, the Federal Funds Rate. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The loss or expense incurred by them as a result of any failure by the Borrower to accept any Advance requested in a Notice of Borrowing or as a result of the failure of the Borrower to receive any Lender to make the Advance to be made by it requested in a Notice of Borrowing as part a result of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Advance on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender condition precedent to make the making of such Advance to be satisfied, including, without limitation, any loss or expense incurred by reason of the liquidation or reemployment of funds acquired or requested to fund such Advance.
(b) If the Borrower has delivered a written request for Committed Advances to the Program Agent and each Managing Agent no earlier than ten (10) Business Days and no later than two (2) Business Days prior to the Lender Termination Date, each Secondary Lender agrees that so long as no Default or Event of Default shall have occurred and be continuing on such date, and subject to the other terms and conditions of this Agreement it shall make an Advance (each a "Committed Advance") on the Lender Termination Date in a principal amount equal to its Secondary Lender Percentage of the outstanding principal amount of the Advances made by its related Conduit Lender. Notwithstanding anything in this Agreement to the contrary, the principal amount of such Committed Advances shall be made by each Related Secondary Lender to the related Managing Agent's Account and shall constitute a payment in full by the Borrower in respect of the outstanding principal amount of the Advances of the related Conduit Lender and its related Lenders maturing on the Lender Termination Date and shall be applied by the related Managing Agent on the Lender Termination Date to the outstanding principal amount of the Advances made by such other Lender on the date of any Borrowingrelated Conduit Lender.
Appears in 1 contract
Sources: Revolving Credit and Security Agreement (Van Kampen Senior Income Trust)
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.3(c) apply to a requested Borrowing as described in Section 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall notify the Lenders, not later than 2:00 p.m. (New York City Boston, Massachusetts time) on the date Business Day that is the requested Funding Date applicable thereto, by telecopy, telephone, or other similar form of such transmission, of the requested Borrowing, . Each Lender shall make available for the account amount of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion Pro Rata Share of such Borrowing. Contract Advances shall be made by the Lenders ratably requested Borrowing available to Agent in accordance with their several Commitments and Competitive Advances shall be made by immediately available funds, to Agent's Account, not later than 3:00 p.m. (Boston, Massachusetts time) on the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so acceptedFunding Date applicable thereto. After the Administrative Agent's receipt of the proceeds of such funds and Advances, upon fulfillment satisfaction of the applicable conditions precedent set forth in ArticleVSection 3 hereof, Agent shall make the Administrative Agent will make such funds proceeds thereof available to Borrower on the Borrower applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that made (1) one or more of the request applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing at would exceed the Administrative Agent's aforesaid addressAvailability on such Funding Date.
(bii) Unless the Administrative Agent shall have received receives notice from a Lender on or prior to the time of Closing Date or, with respect to any Borrowing after the Closing Date, by 3:00 p.m. on a requested Funding Date, that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but -33- no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Revolver Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; PROVIDED FURTHER, HOWEVER, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Abraxas Petroleum Corp)
Making of Advances. (ai) Each Lender shallPromptly after receipt of a request for a Borrowing pursuant to Section 2.3(a), before 12:00noon Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or the Term Loans, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.3(i), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance (or its portion of the Term Loans) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrower as if such Defaulting Lender had made Advances to Borrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this Section 2.1(e) apply to a requested Borrowing as described in Section 2.1(d), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to Section 2.1(c), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to such account of Agent as Agent may designate, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds of such Advances available to Borrower on the applicable Funding Date by transferring same day funds equal to the proceeds of such Advances received by Agent to Borrower's Designated Account; provided, however, that, subject to the provisions of Section 2.1(k), Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability of the Borrower.
(ii) Unless Agent receives notice from a Lender, with respect to any Borrowing, at least one (1) Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrower the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lenders Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower until shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the date Defaulting Lender's benefit; nor shall a Defaulting Lender be entitled to the sharing of any Borrowingpayments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (-0-). This section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable or (y) the requisite non-Defaulting Lenders and Agent shall have waived such Lender's default in writing. The operation of this section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by Borrower of its duties and obligations hereunder.
Appears in 1 contract
Making of Advances. (ai) Each Lender shallIn the event that Agent shall elect to have the terms of this SECTION 2.3(c) apply to a requested Borrowing as described in SECTION 2.3(b), before 12:00noon then promptly after receipt of a request for a Borrowing pursuant to SECTION 2.3(a), Agent shall notify the Lenders, not later than 1:00 p.m. (New York City California time) on the Business Day immediately preceding the Funding Date applicable thereto, by telecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Lender shall make the amount of such Lender's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, not later than 10:00 a.m. (California time) on the Funding Date applicable thereto. After Agent's receipt of the proceeds of such Advances (or such Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in SECTION 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower's Designated Account; PROVIDED, HOWEVER, that, subject to the provisions of SECTION 2.3(i), Agent shall not request any Lender to make, and no Lender shall make, any Advance (or its portion of any Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Availability on such Funding Date.
(ii) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least 1 Business Day prior to the date of such Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent's address referred to in Section 10.02, in same day funds, such Lender's portion of such Borrowing. Contract Advances shall be made by the Lenders ratably in accordance with their several Commitments and Competitive Advances shall be made by the Lender or Lenders whose Competitive Bids therefor have been accepted pursuant to Section 3.03(b)(iv) in the amounts so accepted. After the Administrative Agent's receipt of such funds and upon fulfillment of the applicable conditions set forth in ArticleV, the Administrative Agent will make such funds available to the Borrower that made the request for such Borrowing at the Administrative Agent's aforesaid address.
(b) Unless the Administrative Agent shall have received notice from a Lender prior to the time of any Borrowing that such Lender will not make available as and when required hereunder to Agent for the Administrative Agent such account of Borrowers the amount of that Lender's ratable portion Pro Rata Share of such the Borrowing, the Administrative Agent may assume that such each Lender has made or will make such portion amount available to the Administrative Agent in immediately available funds on the date of such Borrowing in accordance with subsection(a) of this Section 3.04, Funding Date and the Administrative Agent maymay (but shall not be so required), in reliance upon such assumption, make available to the Borrower that made the request for Borrowers on such Borrowing date a corresponding amount on such dateamount. If and to the extent that any such Lender (a "non-performing Lender") shall not have so made such ratable portion its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the Administrative Business Day following such Funding Date make such amount available to Agent, the non-performing Lender and such Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, at the Defaulting Lender Rate for each day from the date during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such Borrower until failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent's account, together with interest thereon for each day elapsed since the date of such amount is repaid to the Administrative AgentBorrowing, at (i)in the case of such Borrower, a rate per annum equal to the interest rate applicable at the time to the Advances comprising composing such Borrowing and (ii)in the case of such Lender, the Federal Funds RateBorrowing. Nothing herein shall in any way limit, waive or otherwise reduce any claims that any party hereto may have against any non- performing Lender.
(c) The failure of any Lender to make the any Advance to be made by it as part of on any Borrowing Funding Date shall not relieve any other Lender of its obligation, if any, any obligation hereunder to make its an Advance on the date of such BorrowingFunding Date, but no Lender shall be responsible for the failure of any other Lender to make the Advance to be made by such other Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the date Defaulting Lender's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender member of the Lender Group ratably in accordance with their Commitments (but only to the extent that such Defaulting Lender's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any BorrowingLender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups' or Borrowers' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
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