Making the Borrowings. (a) All Loans to be made as part of each Borrowing shall consist of Loans of the same Type and Interest Period. Except as otherwise specifically provided herein, each Borrowing shall solely consist of LIBO Rate Loans. (b) Not later than the tenth (10th) day prior to the date of any proposed Borrowing (or such later date agreed to by the Facility Administrative Agent in its sole discretion), the Borrower shall deliver a Notice of Funding to the Facility Administrative Agent and the Independent Engineer accompanied by the documents specified in the Notice of Funding and specifying therein (i) the requested date of such Borrowing and (ii) the aggregate amount of such proposed Borrowing, including the amount of any proposed Construction Loan and the amount of any proposed Contingency Loan. The Borrower shall be entitled to request only one Borrowing during any calendar month; provided, however, that in any calendar month in which any interest or Fee is due and payable pursuant to Section 2.08(a) or Section 3.05, as applicable, the Borrower shall be entitled to request additional Borrowings (with each such Borrowing limited to the amount of, and for the purposes of paying, such interest and Fees due and payable pursuant to Section 2.08(a) or Section 3.05, as applicable, and any Taxes payable with respect to such interest and Fees) or with the prior written consent of the Facility Administrative Agent, which may be granted or withheld in its sole discretion. Each Notice of Funding shall be irrevocable and binding on the Borrower. (c) In connection with each proposed Borrowing (other than any Borrowing limited to the amount of, and for the purposes of paying, interest and Fees due and payable pursuant to Section 2.08(a) or Section 3.05(a), as applicable, and any Taxes payable with respect to such interest and Fees), the Borrower shall deliver a further notice (an "Interest Rate Notice") to the Facility Administrative Agent in substantially the form of Exhibit 2.04(c) hereto, specifying the requested Interest Period for each such Loan (and, subject to Section 2.04(a), the type of such Loans). Each Interest Rate Notice shall be given by the Borrower to the Facility Administrative Agent not later than 11:00 a.m. (New York City time) on the third Business Day prior to the date of the proposed Borrowing. The Facility Administrative Agent shall give each Lender notice of each Interest Rate Notice within one (1) Business Day after the receipt thereof by the Facility Administrative Agent. The Facility Administrative Agent shall promptly notify each Lender of the applicable interest rate under Section 2.08 promptly after determination thereof. Each Interest Rate Notice shall be irrevocable and binding on the Borrower. If no Interest Rate Notice is received by the Facility Administrative Agent as provided in this Section 2.04(c), the interest rate applicable to such Borrowing shall be the LIBO Rate with an Interest Period of one (1) month (or such other Interest Period designated by the Facility Administrative Agent). (d) Each Lender shall, before 11:00 a.m. (New York City time) on the date of any Borrowing, make available to the Facility Administrative Agent such Lender's ratable portion of the Construction Loan and/or the Contingency Loan, as applicable, in accordance with Section 2.01(a) of the Common Agreement. (e) Notwithstanding anything to the contrary herein, in the event that on the date on which any interest or Fees in respect of the Loan Documents are due and payable, the Borrower has not delivered a Notice of Funding in accordance with this Agreement and the other Financing Documents requesting a Borrowing in an amount and on the date necessary to pay such interest or Fees, the Lenders shall have the right to, and the Borrower hereby irrevocably authorizes the Lenders to, make Loans in the aggregate amount of such interest or Fees in respect of the Loan Documents. In the event that the Borrower so fails to deliver such Notice of Funding, the Facility Administrative Agent may notify each Lender of the failure of the Borrower to so deliver such Notice of Funding and request that each Lender make available to the Facility Administrative Agent the ratable share of such aggregate amount of interest or Fees due and payable by the Borrower in respect of the Loan Documents. Each Lender agrees to make available to the Facility Administrative Agent no later than 11:00 a.m. (New York City time on the date so requested by the Facility Administrative Agent) its ratable share of the aggregate amount requested by the Facility Administrative Agent to be disbursed by the Lenders. Notwithstanding the foregoing, the Borrower and each other party hereto hereby agrees that any delay in giving or any failure to give the request referenced in this Section 2.04(e) or to make any such disbursement referenced in this Section 2.04(e) shall not affect the rights of any Lender or of the Facility Administrative Agent under this Credit Agreement or any other Transaction Document and the Borrower expressly acknowledges and agrees that neither the Facility Administrative nor any of the Lender shall have any liability to the Borrower arising therefrom or in connection therewith. (f) Notwithstanding the foregoing, if the date for any proposed Borrowing is a date on which the Borrower is obligated to pay (i) interest on any Construction Loan pursuant to Section 2.08 hereof, any Fees in respect of any Construction Loan Commitment pursuant to Section 3.05(a)(i) hereof or any Fees pursuant to any Fee Letters, then the Facility Administrative Agent may instruct, and in that event each Lender shall, set off against its ratable portion of the Construction Loan to be made on such day the entire amount of interest and Fees due and owing on such date in respect of such Lender's Construction Loans and (ii) interest on any Contingency Loan pursuant to Section 2.08 hereof or any Fees in respect of any Contingency Loan Commitment pursuant to Section 3.05(a)(ii) hereof, then the Facility Administrative Agent may instruct, and in that event each Lender shall, set off against its ratable portion of the Contingency Loan to be made on such day the entire amount of interest and Fees due and owing on such date in respect of such Lender's Contingency Loans.
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Making the Borrowings. (a) All Loans to Each Borrowing shall be made as part of each Borrowing shall consist of Loans of the same Type and Interest Period. Except as otherwise specifically provided hereinon notice, each Borrowing shall solely consist of LIBO Rate Loans.
(b) Not later than the tenth (10th) day prior to the date of any proposed Borrowing (or such later date agreed to by the Facility Administrative Agent in its sole discretion), the Borrower shall deliver a Notice of Funding to the Facility Administrative Agent and the Independent Engineer accompanied by the documents specified in the Notice of Funding and specifying therein (i) the requested date of such Borrowing and (ii) the aggregate amount of such proposed Borrowing, including the amount of any proposed Construction Loan and the amount of any proposed Contingency Loan. The Borrower shall be entitled to request only one Borrowing during any calendar month; provided, however, that in any calendar month in which any interest or Fee is due and payable pursuant to Section 2.08(a) or Section 3.05, as applicable, the Borrower shall be entitled to request additional Borrowings (with each such Borrowing limited to the amount of, and for the purposes of paying, such interest and Fees due and payable pursuant to Section 2.08(a) or Section 3.05, as applicable, and any Taxes payable with respect to such interest and Fees) or with the prior written consent of the Facility Administrative Agent, which may be granted or withheld in its sole discretion. Each Notice of Funding shall be irrevocable and binding on the Borrower.
(c) In connection with each proposed Borrowing (other than any Borrowing limited to the amount of, and for the purposes of paying, interest and Fees due and payable pursuant to Section 2.08(a) or Section 3.05(a), as applicable, and any Taxes payable with respect to such interest and Fees), the Borrower shall deliver a further notice (an "Interest Rate Notice") to the Facility Administrative Agent in substantially the form of Exhibit 2.04(c) hereto, specifying the requested Interest Period for each such Loan (and, subject to Section 2.04(a), the type of such Loans). Each Interest Rate Notice shall be given by the Borrower to the Facility Administrative Agent not later than 11:00 10:00 a.m. (New York City time) on the third Business Day prior to the date of the proposed Borrowing in the case of a Borrowing consisting of Eurodollar Rate Advances, or on the proposed date of such Borrowing in the case of a Borrowing consisting of Base Rate Advances (or 9:00 a.m. (New York City time) on the Second Draw Date if the Borrowing to be made on such date shall consist of Base Rate Advances), by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier or electronic mail. Each such notice of a Borrowing (a "Notice of Borrowing. The Facility ") shall be by telephone, confirmed immediately in writing, or telecopier or electronic mail, in substantially the form of Exhibit B, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day), (ii) aggregate amount of such Borrowing, (iii) Type of Advances comprising such Borrowing and (iv) if such Borrowing is to consist of Eurodollar Rate Advances, initial Interest Period therefor.
(b) With respect to each Borrowing, each Lender shall, before 12:00 noon (New York City time) on the date thereof (or 10:00 a.m. (New York City time) on the Second Draw Date in the case of the Borrowing to be made on such date), make available for the account of its Applicable Lending Office to the Administrative Agent shall give each Lender notice of each Interest Rate Notice within one (1) Business Day after at the receipt thereof by the Facility Administrative Agent's Account, in immediately available funds, an amount equal to such Lender's ratable portion of such Borrowing in accordance with the respective Commitments of such Lender and the other Lenders. The Facility After the Administrative Agent shall promptly notify each Lender Agent's receipt of such funds and upon fulfillment of the applicable interest rate conditions set forth in Article III, the Administrative Agent will (i) in the case of the initial Borrowing, directly apply the Advances for the account of the Borrower to the repayment of the aggregate principal amount outstanding under the Existing Credit Agreement and (ii) in the case of the second Borrowing, make such funds available to the Borrower by crediting the Borrower's Account. Anything in subsection (a) above to the contrary notwithstanding, the Borrower may not select Eurodollar Rate Advances with respect to any Borrowing if the obligation of the Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to Section 2.08 promptly after determination thereof. 2.03, 2.10 or 2.11.
(c) The failure of any Lender to make the Advance to be made by it as part of either 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 required of such other Lender on the date of such Borrowing.
(d) Each Interest Rate Notice of Borrowing shall be irrevocable and binding on the Borrower. If no Interest the Notice of Borrowing for any Borrowing specifies the Advances thereunder are to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing the conditions set forth in Article III, including any loss (including loss of anticipated profits), cost or expense incurred by reason of the liquidation or redeployment of deposits or other funds acquired by such Lender to fund the Advance to be made by such Lender as part of such Borrowing when such Advance, as a result of such failure, is not made on such date.
(e) Subject to the Administrative Agent giving prompt notice of the relevant Notice of Borrowing received by the Facility Administrative Agent as provided in this Section 2.04(c)to the Lenders, unless the interest rate applicable Administrative Agent shall have received notice from a Lender prior to such Borrowing shall be the LIBO Rate with an Interest Period of one (1) month (or such other Interest Period designated by the Facility Administrative Agent).
(d) Each Lender shall, before 11:00 a.m. (New York City time) on the date of any Borrowing, the Borrowing requested under such Notice of Borrowing that such Lender will not make available to the Facility Administrative Agent such Lender's ratable portion of such Borrowing, the Construction Loan and/or Administrative Agent may assume that such Lender has made such portion available to the Contingency Loan, as applicable, Administrative Agent on the date of such Borrowing in accordance with Section 2.01(asubsection (b) of this Section 2.02 and the Common Agreement.
(e) Notwithstanding anything to the contrary hereinAdministrative Agent may, in the event that on the date on which any interest or Fees in respect of the Loan Documents are due and payablereliance upon such assumption, the Borrower has not delivered a Notice of Funding in accordance with this Agreement and the other Financing Documents requesting a Borrowing in an amount and on the date necessary to pay such interest or Fees, the Lenders shall have the right to, and the Borrower hereby irrevocably authorizes the Lenders to, make Loans in the aggregate amount of such interest or Fees in respect of the Loan Documents. In the event that the Borrower so fails to deliver such Notice of Funding, the Facility Administrative Agent may notify each Lender of the failure of the Borrower to so deliver such Notice of Funding and request that each Lender make available to the Facility Administrative Agent Borrower a corresponding amount. If and to the extent that such Lender shall not have made such ratable share of such aggregate amount of interest or Fees due and payable by the Borrower in respect of the Loan Documents. Each Lender agrees to make portion available to the Facility Administrative Agent no later than 11:00 a.m. (New York City time on the date so requested by the Facility Administrative Agent) its ratable share of the aggregate amount requested by the Facility Administrative Agent to be disbursed by the Lenders. Notwithstanding the foregoing, the Borrower and each other party hereto hereby agrees that any delay in giving or any failure to give the request referenced in this Section 2.04(e) or to make any such disbursement referenced in this Section 2.04(e) shall not affect the rights of any Lender or of the Facility Administrative Agent under this Credit Agreement or any other Transaction Document and the Borrower expressly acknowledges severally agree to repay or pay to the Administrative Agent forthwith on demand such corresponding amount and agrees that neither to pay interest thereon, for each day from the Facility Administrative nor any of the Lender shall have any liability date such amount is made available to the Borrower arising therefrom or in connection therewith.
(f) Notwithstanding the foregoing, if until the date for any proposed Borrowing such amount is a date on which repaid or paid to the Borrower is obligated to pay Administrative Agent, at (i) interest on any Construction Loan pursuant to Section 2.08 hereof, any Fees in respect of any Construction Loan Commitment pursuant to Section 3.05(a)(i) hereof or any Fees pursuant to any Fee Letters, then the Facility Administrative Agent may instruct, and in that event each Lender shall, set off against its ratable portion case of the Construction Loan Borrower, the interest rate applicable at such time under Section 2.07 to be made on Advances comprising such day the entire amount of interest and Fees due and owing on such date in respect of such Lender's Construction Loans Borrowing and (ii) interest on any Contingency Loan pursuant to Section 2.08 hereof or any Fees in respect of any Contingency Loan Commitment pursuant to Section 3.05(a)(ii) hereof, then the Facility Administrative Agent may instruct, and in that event each Lender shall, set off against its ratable portion of the Contingency Loan to be made on such day the entire amount of interest and Fees due and owing on such date in respect case of such Lender, the Federal Funds Rate. If such Lender shall pay to the Administrative Agent such corresponding amount, such amount so paid shall constitute such Lender's Contingency LoansAdvance as part of such Borrowing for all purposes.
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