Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof. (b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify: (i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000; (ii) the proposed date of such Advance; (iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and (iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing. (c) The Advances shall bear interest at the Yield Rate. (d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date. (e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error. (f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02). (g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Ares Capital Corp), Loan and Servicing Agreement (Ares Capital Corp)
Procedure for Advances. A. At the time of each Advance, there shall exist no default or Event of Default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date. Each Advance (aother than under a Swing Loan) During shall be made pursuant to a Draw Request submitted by Borrower to Agent on behalf of the Reinvestment PeriodLenders. Each Advance under a Swing Loan shall be made pursuant to a Swing Loan Draw Request submitted by Borrower to Agent and Swing Lender (if a party other than Agent).
B. With respect to each Draw Request:
(I) Not later than 10:00 A.M. (Central time) three (3) Euro Business Days prior to the Advance Date if any portion of the requested Advance is desired by Borrower to be a LIBOR Rate Advance, and one Business Day prior to the Advance Date if any portion of the requested Advance is to be a Loan Rate Advance, Borrower shall deliver to Agent a request, in writing, designating the amount of such portion (in the minimum amount of $1,000,000.00 and in integral multiples of $100,000.00 in excess thereof (provided that a $100,000 increment may consist in part of a Tranche A Advance and in part of a Tranche B Advance if the Advance will cause the Total Revolving Outstandings to exceed the Tranche A Loan Availability)) and designating the initial LIBOR Rate Period applicable thereto. If no such request is made by Borrower with respect to any Advance, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrowerentire Advance shall be deemed to be a Loan Rate Advance.
(II) On each Advance Date, subject to and in accordance with if all the terms and conditions of Sections 2.01 and 2.02 and subject this Agreement have been complied with by Borrower, to the provisions satisfaction of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from Agent, if no default or Event of Default exists hereunder, and if Agent has approved the Borrower to the Agent (who will provide Draw Request, each Lender with shall advance to Agent its Commitment Percentage of the principal amount of the requested Advance by delivering to Agent a copy promptly upon receipt thereof), with a copy wire transfer of funds. Agent shall then forward the Advance to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing Borrower. All Advances actually so made shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such timebe loans to Borrower, shall be deemed to have been received on reduce the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use available amount of the proceeds thereof)Revolving Loan Commitment, and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Raterates provided herein from the date so advanced.
(dIII) Subject All Advances shall constitute Tranche A Advances to the extent that the then Total Revolving Outstandings are less than or equal to the Tranche A Loan Availability, subject to subsequent reallocation in accordance with Section 2.18 2.B.3.G. All Advances in excess of the Tranche A Loan Availability shall constitute Tranche B Advances.
C. With respect to each Swing Loan Draw Request, Borrower shall deliver any such request no later than 10:00 A.M. (Central time) on the requested Advance Date. On each such Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower, to the satisfaction of Agent and Swing Lender (if a party other termsthan Agent), conditionsif no default or Event of Default exists hereunder, provisions and limitations set forth herein if Agent and Swing Lender (including, without limitationif a party other than Agent) have approved the Swing Loan Draw Request, the Swing Lender shall advance to Agent the amount of the approved Advance. Agent shall then forward the Advance to Borrower. All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Swing Loan Commitment, and shall bear interest at the rates provided herein from the date so advanced.
D. Each Lender shall also have the right, but not the obligation, so long as an Event of Default exists hereunder, to advance to Agent the proceeds of any Advance for application to the satisfaction of any of Borrower’s Obligations. Any Advance by a Lender for such purpose shall be part of the Loan and shall be evidenced and secured by the Loan Documents from the date made. Borrower hereby authorizes each Lender, so long as an Event of Default exists hereunder, to hold, use, advance and apply Loan proceeds for the payment or performance of any obligation of Borrower hereunder, including but not limited to the obligation to pay interest on the Loan.
E. In the event that Agent (and/or the Swing Lender (if a party other than Agent) in the case of a Swing Loan Request) shall determine, in its sole judgment, that proper documentation to support a requested Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the Commitment Termination Premium, if anydiscrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of such Agent (and/or the Swing Lender, as applicable), it may withhold such funds.
F. Borrower shall provide notice to Agent in the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end Draw Request of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender proposed use of the existence requested Advance. If Borrower anticipates using the Advance for purposes of any Eurodollar Disruption Event with respect financing construction on a Real Estate Asset Under Development, Borrower shall provide evidence to Agent at the time of each such Lender Draw Request that Borrower or an Approved Subsidiary has entered into leases for not less than fifty percent (any such determination to be communicated to 50%) of the Borrower by written notice from the Agent promptly after the Agent learns rentable square footage of such event), or Real Estate Asset Under Development (which leases must be on arms-length terms and conditions if with an affiliate of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”Borrower). Following receipt of a Notice of Borrowing (which If Borrower fails to provide the foregoing evidence, Agent shall specify have no obligation to make the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund requested Advance for such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)construction.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Saul Centers Inc), Revolving Credit Agreement (Saul Centers Inc)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a LIBOR Advance or a Base Rate Advance. For each LIBOR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Collateral Custodian and the Account Bank) no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks a Deal Interactive (or other replacement) website to which the Administrative Agent and each Lender has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBOR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded by the Transferor or the Borrower into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance (or portion thereof) should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance, by payment into the Advance and upon receipt Funding Account or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such amounts with respect to such AdvanceAdvance into the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBOR Advance shall bear interest at the applicable LIBOR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred and is continuing, the Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the Conversion Date on which such Base Rate Advance is to be converted into a LIBOR Advance.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), ifIf, on the last day of the Reinvestment PeriodPeriod (or no later than three Business Days after the occurrence of an Event of Default if the Reinvestment Period ends due to the occurrence of an Event of Default), the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall after taking into account the amounts required to be deposited into the Unfunded Exposure Account in accordance with clause (iii) below (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (as described in clause (ii) below), each Lender shall fund such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Lender’s Advances to exceed such Lender’s Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available)) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default, each Lender shall fund such have a funding obligation with respect to the Unfunded Exposure Amount Shortfall in accordance with under this Section 2.02(b), notwithstanding anything 2.02(f) solely to the contrary herein extent that (includingA) the Borrower shall have, without limitationprior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(viii) or by an equity contribution by CCT(x) prior to the consummation of a Permitted BDC Merger, CCT, and (y) on or after the consummation of each Permitted BDC Merger, the Borrower’s failure applicable Permitted BDC, or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to satisfy any fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default or the last day of the conditions precedent set forth in Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 3.02)2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (FS KKR Capital Corp), Loan and Servicing Agreement
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable)herein, the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender ▇▇▇▇▇ Fargo of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 2 contracts
Sources: Omnibus Amendment (Ares Capital Corp), Sale and Servicing Agreement (Ares Capital Corp)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the pursuant to (i) a Draw Request with respect to Construction Project Loans, and (ii) an Application and Certificate for Payment with respect to Development Project Loans, which shall be submitted by Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy and to the Trustee Inspecting Architect. With respect to each Development Project, Borrower shall not submit more than one (1) Application and the Collateral CustodianCertificate for Payment during any thirty (30) day period. With respect to Construction Projects, in the form of a Notice of Borrowing; provided that such Notice of Borrowing Borrower shall be deemed entitled to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. make unlimited Draw Requests during any thirty (New York City time30) on such Business Day and if not delivered by such time, day period.
(b) Borrower shall be deemed deliver to have been received Lender an updated Borrowing Base Certificate on the following Business Dayfirst (1st) day of each month. Each Swingline Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingConstruction Project Loan.
(c) The On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Revolving Loan and of the Project Loan for the related Project (if any), and shall bear interest at the Yield Raterates provided herein from the date so advanced.
(d) Subject Lender may take such steps as it may deem appropriate, at its option, to Section 2.18 verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment amount of the Commitment Termination Premium, if any, as applicable), Advances to be made to the Borrower may (i) borrow and reborrow Advances without hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any penalty, on and after the Restatement Date and prior such verification or to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Dateso vary said procedures.
(e) Determinations In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns this Agreement, has not been furnished, it may withhold payment of such event)Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the effect discrepancy in or omission of any Eurodollar Disruption Event on its making such documentation. Until such time as such discrepancy or maintaining Advances at LIBORomission is corrected to the satisfaction of Lender, shall be conclusive absent manifest errorit may withhold such funds.
(f) Notwithstanding anything to At the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation time of each Lender to remit its Pro Rata Share Advance, there shall exist no default or event of any Advance default hereunder, and all representations and warranties made herein shall be several from that true and correct on and as of each other Lender and Advance Date with the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereundersame effect as if made on that date.
Appears in 2 contracts
Sources: Revolving Construction and Development Loan Agreement (Lundgren Bros Construction Inc), Revolving Construction and Development Loan Agreement (Lundgren Bros Construction Inc)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a SOFR Advance or a Base Rate Advance; provided that the Borrower shall not deliver more than two Notices of Borrowing in one week. For each SOFR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Securities Intermediary and the Collateral Administrator) no later than 1:00 p.m. at least two Business Days before the Business Day on which the SOFR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender (with a copy to the Collateral Administrator and the Securities Intermediary) no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing BaseBase (calculated on a “settlement date” basis, after giving pro forma effect to any committed purchases and sales on such settlement date); provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date (which shall be a Business Day) and whether such Advance will be a SOFR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance (or portion thereof) should be remitted to an account specified by the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writingwriting or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such Advance into the Unfunded Exposure Account; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each SOFR Advance shall bear interest at the applicable SOFR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred and is continuing (and has not been waived), the Borrower may request that the Administrative Agent convert (i) any Base Rate Advance, in whole and not in part, to a SOFR Advance and (ii) any SOFR Advance, in whole and not in part, to a Base Rate Advance, in each case, by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the Conversion Date on which (w) such Base Rate Advance is to be converted into a SOFR Advance or (x) such SOFR Advance is to be converted into a Base Rate Advance, as applicable. All Advances and all interest thereon shall be due and payable in full on the Facility Maturity Date.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Make-Whole Premium, if any, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay fee or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Datepremium.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error[Reserved].
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, upon the occurrence and continuance of an Event of Default (that has not been waived) or on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Aggregate Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Pro Rata Share of Advances to exceed such ▇▇▇▇▇▇’s Pro Rata Share of its Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default (that has not been waived), each Lender shall have a funding obligation with respect to the Unfunded Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (A) the Borrower shall have, prior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(ix) or by an equity contribution by the Transferor or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default (that has not been waived) or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 2 contracts
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund), Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Procedure for Advances. (a) During Subject to the Reinvestment Periodlimitations set forth in Section 2.01(b), the Borrower may request an Advance from the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day by delivering at the request of specified times the Borrower, subject to information and documents set forth in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereofthis Section 2.02.
(b) Each Advance shall be made on No later than 2:00 p.m. at least one (1) Business Day’s irrevocable written notice from Day and not more than five (5) Business Days prior to the proposed Advance Date, the Borrower shall, or shall cause the Collateral Manager to, deliver:
(i) to the Administrative Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee Collateral Agent and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent of such proposed Advance Date (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include including a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:;
(iii) to the aggregate Administrative Agent a wire disbursement and authorization form, to the extent not previously delivered; and
(iii) to the Administrative Agent (with a copy to the Collateral Agent and the Collateral Custodian) a duly completed Notice of Borrowing which shall (A) specify the desired amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
, to be allocated to each Lender in accordance with its Pro Rata Share, (iiB) specify the proposed date of Advance Date for such Advance;
, (iiiC) specify the Loan(s), if any, to be financed on such Advance Date (including the appropriate file number, a description of the Obligor, original loan balance, Outstanding Balance, Assigned Value and Purchase Price for each Loan and identifying each Loan by type and proposed Advance Rate applicable to each such Loan) and (D) include a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; andmet. Each Notice of Borrowing shall be irrevocable. If any Notice of Borrowing is received by the Administrative Agent after 2:00 p.m. on the Business Day prior to the Business Day for which such Advance is requested or on a day that is not a Business Day, such Notice of Borrowing shall be deemed to be received by the Administrative Agent at 9:00 a.m. on the next Business Day.
(ivc) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each proposed Advance (other than a Swingline Advance)Date, subject to the limitations set forth in Section 2.01(b) and upon satisfaction of the applicable conditions set forth in Article III, (i) each Lender shall make available to the Administrative Agent on the applicable Advance Date in same day funds funds, at such bank or other location reasonably designated by no later than 12:00 noonthe Administrative Agent from time to time, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt the least of such amounts with respect to (A) the amount requested by the Borrower for such Advance, (B) the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated aggregate unused Commitments then in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent effect and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, (C) an amount equal to the amount by which the Borrowing Base exceeds Advances Outstanding on such Advance Date (after giving effect to the use of such Swingline Advance for the purchase of Eligible Loans) and upon receipt of such amount with respect to such Swingline Advance, (ii) the Administrative Agent shall promptly fund such amounts by wire transfer make the aggregate amount received from the Lenders available to the account which Borrower at such bank or other location reasonably designated by Borrower in the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield RateNotice of Borrowing given pursuant to this Section 2.02.
(d) On each Advance Date, the obligation of each Lender to remit its Pro Rata Share of any such Advance shall be several from that of each other Lender and the failure of any Conduit Lender or Institutional Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder.
(e) Subject to Section 2.18 2.04 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable)herein, the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Closing Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances may be requested and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject made from time to and time in accordance with the terms provisions set forth herein. To request an Advance, the Borrower shall submit a completed Draw Request to Lender accompanied by copies of the invoice(s) (or similar document (such as a lease, contract or other obligation document)) to be paid through the Advance. The Draw Request shall specify the amount of the Advance requested and shall reference the specific invoice(s) (or similar document (such as a lease, contract or other obligation document)) to which the Advance will be applied. In no event shall the Draw Request exceed the remaining available principal balance of the Loan. Together with such additional information as Lender may reasonably require, the Draw Request shall include a certification that, as of the date of the request, all representations and warranties contained in Article 6 of this Agreement continue to be true and correct, no Default or Event of Default has occurred or is continuing hereunder, and the Borrower continues to be in compliance in all respects with all other terms, covenants and conditions contained in the Loan Documents. The Draw Request shall be signed by the Borrower Representative. With the exception of Sections 2.01 and 2.02 and subject the Draw request for the Initial Advance, each Draw Request shall be submitted to Lender not less than ten (10) Business Days prior to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, earliest due date provided in the form invoice(s) to which the Advance will be applied. Upon Lender’s review and approval of a Notice of Borrowing; provided that such Notice of Borrowing the Draw Request, Lender (at Lender’s sole discretion) shall be deemed make the Advance thereunder either directly to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy deposit of funds directly to the Trustee and Borrower’s Account or by way of direct payment(s) on the Collateral Custodian, Borrower’s behalf to the payee(s) identified in the form subject invoice(s). Any charges or fees for late payment of a Notice of Borrowing; provided that such Notice of Borrowing any invoice(s) shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer charged to the account which of the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon if and to the Agent and upon receipt of such amounts with respect to such Advance, extent the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the late payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice resulted from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any follow the requirements of the conditions precedent set forth in this Section 3.02)2.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During Promptly upon receipt of a Draw Request from Borrower, Agent shall deliver written notice to each Lender at the Reinvestment Periodaddress specified by each Lender from time to time which notice shall include the Borrowing Date and such ▇▇▇▇▇▇’s Ratable Share of such Advance. Agent shall include with such notice a copy of the Draw Request, to the extent not previously delivered and to the extent in Agent’s possession, and Agent shall promptly deliver to each Lender all items in respect of such Advance received by Agent after the date of such notice. Lenders shall make the requested Advance on the Borrowing Date so long as all conditions to such Advance are satisfied or waived. Unless otherwise notified by Agent, each Lender may assume that all conditions to such Advance are satisfied or waived on the Borrowing Date.
(b) Not later than 11:00 a.m. New York City time, on the Borrowing Date, each Lender shall make available for the account of Agent at its address referred to in Section 9.02, in same day funds, such Lender’s Ratable portion of such Advance. After Agent’s receipt of such funds and upon fulfillment of the applicable conditions in Article II, Agent will make such funds available to Borrower in accordance with the terms of this Section 2.11.
(c) Unless Agent shall have received notice from a Lender prior to the Borrowing Date that such Lender will not make available to Agent such ▇▇▇▇▇▇’s Ratable portion of such Advance, Agent may assume that such Lender has made such portion available to Agent on the Borrowing Date in accordance with Section 2.11(b), and Agent may, in reliance upon such assumption, make available to Borrower on the Borrowing Date
(d) If the Defaulting ▇▇▇▇▇▇’s default has not been cured, Lenders, in the sole discretion of Agent, shall have the right to make no further Advances under the Loan and the Swingline Lender will make Swingline Advances on Loan Amount shall be permanently reduced by any Business Day at and all Deficiencies unless and until a substitute lender that is an Eligible Assignee, reasonably acceptable to Lenders, other than the request Defaulting Lender(s), pays such Deficiency(ies) to the Agent who shall distribute same to Borrower or Agent, as applicable, and assumes the obligations of the Borrower, Defaulting Lender to fund its Ratable Share of the balance of the Loan subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 this Agreement and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity DateLoan Documents.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (AB Commercial Real Estate Private Debt Fund, LLC)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one onetwo Business DayDayDays’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will each Committed Lender and each Lender Group severally agrees to make Advances and the Swingline Lender will make Swingline Advances on any Business Day Day, at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereofIII. The Conduit Lender in each Lender Group may, in its sole discretion, make Advances to the Borrower in accordance with this Article II in a principal amount equal to its Lender Group Percentage of such requested Advance; provided that at no time shall a Conduit Lender have any obligation to make an Advance and if a Conduit Lender declines to make any Advance, the Committed Lenders in the related Lender Group shall make the Advances in an aggregate principal amount equal to the related Lender Group Percentage of such requested Advances.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing. The Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Group Agent (with a copy to the Lenders, the Collateral Agent and the Account Bank) no later than 2:00 p.m. at least one Business Day before the Business Day on which the Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 2:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), that the amount of such Advance must be at least equal to the lesser of (x) $500,000500,000 and (y) the Unfunded Commitment on such day before giving effect to the requested Advance;
(ii) the proposed date of such AdvanceAdvance Date;
(iii) the Advance Funding Account, if applicable; and
(iv) a representation that all conditions precedent for an such Advance described in Article III hereof have been satisfied; and.
(ivc) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On Not later than 2:00 pm on the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender Group shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noonAdministrative Agent, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to such Lender Group’s Lender Group Percentage of the amount of the requested Advance, by payment into the applicable Advance Funding Account. Each Advance hereunder shall consist of one or more Advances made by each Lender Group and, within each Lender Group, by the Conduit Lenders and/or Committed Lenders in such Lender Group. The failure or refusal of any Lender Group to remit by the aforesaid time and place on any Advance Date the amount of its Lender Group Percentage of the requested Advance shall not relieve any other Lender Group or Committed Lender therein from its several obligations hereunder to remit the amount of such Swingline Advance and upon receipt other Lender Group’s Lender Group Percentage of such amount with respect to such Swingline any requested Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower upon delivery thereof and shall obligate the Borrower to accept the Advances (or portion thereof) requested from the Lenders on the related Advance Date. Each Notice of Borrowing shall be deemed to be a request for a SOFR Advance or, if the circumstances in Sections 2.23 and 2.24 of this Agreement are then continuing, a Base Rate Advance (with respect to Advances funded by Committed Lenders) or a CP Rate Advance (with respect to Advances funded by Conduit Lenders).
(e) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable)herein, the Borrower may (i) borrow and reborrow borrow, reborrow, repay or prepay Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (includingherein, without limitation, upon the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day end of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “portion of the Aggregate Unfunded Amount corresponding to the Variable Funding Assets owned by the Borrower minus the amount already on deposit in its Unfunded Exposure Amount Shortfall”)Account. Following receipt of a Notice of Borrowing (which such Advance request, the Lenders shall specify fund such requested amount in accordance with the account details of procedures set forth in this Section 2.02 by transferring such amount directly to the Collateral Custodian to be deposited into the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)Account.
(g) The obligation of each Nothing herein shall be deemed to commit any Conduit Lender to remit fund or maintain any Advances at any time, and any Conduit Lender may at any time transfer to one or more of its Pro Rata Share Committed Lenders in its Lender Group all or a portion of its Advances and rights hereunder.
(h) The Administrative Agent may, unless notified to the contrary by any Group Agent prior to an Advance shall Date, assume that its related Lender Group has made available to the Administrative Agent on such Advance Date the amount of such Lender Group’s Lender Group Percentage of the Advances to be several from that of each other Lender made on such Advance Date, and the failure of any Lender to so Administrative Agent may (but it shall not be required to), in reliance upon such assumption, make such amount available to the Borrower a corresponding amount. If any Lender Group makes available to the Administrative Agent such amount on a date after such Advance Date, such Lender Group shall not relieve pay to the Administrative Agent on demand an amount equal to the product of (i) the average computed for the period referred to in clause (iii) below, of the weighted average interest rate paid by the Administrative Agent for federal funds acquired by the Administrative Agent during each day included in such period, multiplied by (ii) the amount of such Lender Group’s Lender Group Percentage of such Advances, multiplied by (iii) a fraction, the numerator of which is the number of days that elapse from and including such Advance Date to the date on which the amount of such Lender Group’s Lender Group Percentage of such Advances shall become immediately available to the Administrative Agent, and the denominator of which is 360. A statement of the Administrative Agent submitted to such Lender Group’s Group Agent with respect to any other Lender of its obligation hereunder. For the avoidance of doubt no Lender amounts owing under this Section 2.02(g) shall be responsible for prima facie evidence of the failure of any other amount due and owing to the Administrative Agent by such Lender to remit its Pro Rata Share of any Advance requested hereunderGroup.
Appears in 1 contract
Sources: Omnibus Amendment (Blue Owl Technology Finance Corp. II)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance For each LIBOR Advance, the Borrower shall be made on at least one Business Day’s deliver an irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 11:00 a.m. on the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 p.m. (New York City time) 11:00 a.m. on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks a Deal Interactive (or other replacement) website to which the Administrative Agent and each Lender has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Fifth Street Finance Corp)
Procedure for Advances. Unless Borrowers have previously entered into a separate auto borrow or similar cash management service with Lender, Borrowers may request Advances by telephone through its employees or agents, as hereinafter provided. Each Advance request must be received by Lender not later than 1:00 p.m. (aEastern Standard time) During on the Reinvestment Period, date the Lenders will make Advances Advance is to be made and must specify the Swingline Lender will make Swingline Advances on any Business Day at the request amount of the BorrowerAdvance. Lender shall deposit the Advance into Borrowers’ Operating Account if Borrowers are entitled to the Advance, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to this Agreement. If Borrowers have entered into a separate auto borrow or similar cash management service with Lender, then the provisions of Article III hereof.
such service shall control with respect to the procedures for making Advances to Borrowers. Lender shall have the right to terminate such auto borrow or similar cash management service at any time, as determined in Lender’s sole and absolute discretion. Notwithstanding anything contained herein to the contrary, so long as the Borrowers opt to use the Lender’s “AutoBorrow” program and have executed and delivered to the Lender an AutoBorrow Service Agreement (b) Each Advance which AutoBorrow Service Agreement remains in full force and effect), all Advances to be made hereunder shall be made in accordance with, and all interest accrued on such Advances and all repayments of such Advances shall be payable at least one Business Day’s irrevocable written notice from the Borrower times and in the manner provided for in the AutoBorrow Service Agreement. To the extent that any of the provisions hereof are inconsistent with provisions of the AutoBorrow Service Agreement, the provisions of the AutoBorrow Service Agreement shall govern. Any Advances made to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to Borrowers under the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing AutoBorrow Service Agreement shall nonetheless be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant hereunder, subject to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingterms hereof.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Revolving Line of Credit Loan and Security Agreement (Essex Corp)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 2,01 and 2.02 this 2,02 and subject to the provisions of Article III hereof.
(b) Each For each Advance that is a LIBORBenchmark Advance, the Borrower shall be made on at least one Business Day’s deliver an irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent, with a copy to the Collateral Custodian, no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBORBenchmark Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each One Day Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing no later than 1:00 p.m. at least one Business Day before the Business Day on which the One Day Advance is to be made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. on such Business Day, such Notice of Borrowing shall be deemed to have been received by on the following Business Day. For each Base Rate Advance, the Borrower shall deliver an irrevocable written notice in the form of a Notice of Borrowing to the Administrative Agent on a Business Day if delivered no later than 5:00 1:00 p.m. (New York City time) at least one Business Day before the Business Day on which the Base Rate Advance is to be made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Administrative Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBORBenchmark Advance, One Day Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each applicable Advance (other than a Swingline Advance)Date, upon satisfaction of the applicable conditions set forth in Article III, each the Lender shall shall, in accordance with instructions received by the Administrative Agent, either (i) make available to the Agent on Borrower, in same day funds, the applicable amount of such Advance, by payment into the Advance Date Funding Account and/or (ii) remit in same day funds by no later than 12:00 noon, an the amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advanceinto the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each the Lender shall remit (to the extent required thereby) the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBORBenchmark Advance shall bear interest at the applicable LIBORBenchmark Yield Rate. Each One Day Advance shall bear interest at the applicable One Day Advance Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. The Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBORBenchmark Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the LLIBORBenchmark Conversion Date on which such Base Rate Advance is to be converted into a LIBORBenchmark Advance. The Borrower may request that the Administrative Agent convert any One Day Advance, in whole and not in part, to a LIBORBenchmark Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the LIBORBenchmark Conversion Date on which such One Day Advance is to be converted into a LIBORBenchmark Advance. The Borrower may request that the Administrative Agent convert any LIBORBenchmark Advance, in whole and not in part, to a Base Rate Advance by (i) delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days’ before the Base Rate Conversion Date (which shall be a Payment Date on which the Interest Period for such LIBORBenchmark Advance ends) on which such LIBORBenchmark Advance is to be converted into a Base Rate Advance and (ii) paying in full any Breakage Fees (solely to the extent the Base Rate Conversion Date occurs on any day other than a Payment Date or with less than three Business Days’ prior written notice to the Administrative Agent). The Borrower may request that the Administrative Agent convert any One Day Advance, in whole and not in part, to a Base Rate Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the Base Rate Conversion Date on which such One Day Advance is to be converted into a Base Rate Advance.
(d) Subject to Section 2.18 2,18 and the other terms, conditions, provisions and limitations set forth herein (including, including without limitation, limitation the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances Outstanding without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances Outstanding without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBORLIBORthe Benchmark or One Day Advance LIBORBenchmark, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), ifIf, on the last day of the Reinvestment PeriodPeriod (or within three Business Days after the occurrence of an Event of Default if the Reinvestment Period ends due to the occurrence of an Event of Default), the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made availableas described in clause (ii) below), each the Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, including without limitation, limitation (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.023,02, (b) the occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency).; provided that:
(gi) The obligation of each the Lender may fund such Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause the Lender to remit its Pro Rata Share make an Advance that would result in the aggregate outstanding principal amount of any Advance shall be several from that of each other Lender and the failure of any Lender Advances to so make such amount available to exceed the Maximum Facility Amount (without taking into account the proviso set forth in the definition thereof);
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy from the Administrative Agent to the Lender) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default, the Lender shall have a funding obligation with respect to the Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (1) the Borrower shall have, prior to the date of such funding obligation, deposited an amount not relieve less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(d)(vi) or by an equity contribution by Ares or by any other Lender combination of its obligation hereunderthose two methods and (2) such funds, as of the date of such funding, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt no doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of the Lender to make an Advance pursuant to this Section 2.02(f) shall be responsible for without prejudice to the failure obligation of the Borrower to cure any other Lender Borrowing Base Deficiency that exists prior to remit its Pro Rata Share of any such Advance requested hereunderor results therefrom.
Appears in 1 contract
Sources: Amendment No. 8 (Ares Capital Corp)
Procedure for Advances. So long as:
(a) During the Reinvestment Period, the Lenders will make Advances No Event of Default has occurred and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.is continuing;
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof)The conditions specified in Sections 4.3, with a copy to the Trustee 4.4, 4.5, 4.6 and the Collateral Custodian4.7, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such timeas applicable, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(ivc) The Budget has not been modified without the amount prior written consent of cash Lender having been obtained as provided in Section 3.7 hereof; Provided that Borrower has timely provided all required information and satisfied the conditions to each Advance at the time of Borrower’s submission of the Request for Advance, then, Lender agrees to make Advances and agrees to notify Borrower when such Advance(s) will be funded into made, which shall not be later than ten (10) business days thereafter. Further, prior to any Advance being made, Inspecting Engineer or Lender shall have determined whether the Unfunded Exposure Account in connection with Application for Advance is complete and whether all other conditions precedent to the Advanceproposed Advance capable of being met by such date have been met. If Inspecting Engineer or Lender determines that the Application for Advance is incomplete or that all such conditions precedent to the Advance have not been met, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction it shall forthwith notify Borrower of the applicable deficiency. If Inspecting Engineer determines that all such conditions set forth in Article IIIare met, each it shall immediately notify Lender. Upon determining that all such conditions have been met, Lender shall make available to its Advance into the Agent Borrower’s Funds Account on the applicable Advance Date date in same day funds by immediately available funds; provided that in the meantime no later than 12:00 noonEvent of Default shall have occurred and be continuing, an amount equal and there is no failure of any condition precedent to such Lender’s Pro Rata Share Advance as of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of Date. If after Lender or Inspecting Engineer determines that the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to Application for Advance is complete and that the Agent conditions precedent thereto have been met, and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of subsequently an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the condition precedent occurs, then Borrower shall not relieve be liable to Lender for any and all loss, costs, penalty, claim or other charges suffered or incurred by Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible in connection with their arrangements for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereundersuch Advance.
Appears in 1 contract
Sources: Loan Agreement (Aina Le'a Inc.)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on byon at least one Business Day’s irrevocable written notice from the Borrower to the Administrative Agent (who will provide and each Lender with a copy promptly upon receipt thereof)Agent, with a copy to the Trustee Collateral Agent and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Administrative Agent and each Lender Agent on a Business Day if delivered no later than 3:00 2:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Administrative Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof)Agent, with a copy to the Trustee Collateral Agent and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Administrative Agent and each Lender Agent on a Business Day if delivered no later than 5:00 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post provide electronic copies of all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) a website that the Administrative Agent has approved and to which the Administrative Agent has and each Lender Agent have access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Business Development Corp of America)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject Subject to and in accordance with the terms and conditions hereof, Lender shall make Advances of Sections 2.01 and 2.02 and subject each Non-Revolving Loan to a Corporate Checking Account maintained by Borrower at Lender's Affiliate, from time to time, for payment of construction costs of the provisions of Article III hereof.
(b) Each Advance Improvements, as such construction occurs as determined by the Inspector. Advances shall be made upon request of Borrower in the following manner for each Project:
7.6.1 Not less than ten (10) Business Days before the date on at least one Business Day’s irrevocable written notice from which Borrower desires an Advance, Borrower shall submit to Lender a request for an Advance using AIA Forms G702 and G703, including any change orders, invoices for soft costs, and other documents required hereunder, accompanied by a cost breakdown, the accuracy of which shall be certified by Borrower and approved in writing by the Project Architect or the county engineer in the county in which the Project is located. Lender's "Hard and Soft Cost Requisition Form" form shall serve as the disbursement control for each line item. Lender shall not be required to make an Advance for any line item in excess of the Agent (who will provide each Lender with amount shown in the "Loan Reserve Category" set forth in such "Hard and Soft Cost Requisition Form" form;
7.6.2 Requests for Advances after the first Advance shall not be made more often than once a copy promptly upon receipt thereof), with a copy to the Trustee month and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing total amount advanced shall be deemed not at any time exceed an amount equal to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount percentage of such Advance which amount shall not cause completion evidenced by the Advances Outstanding to exceed inspections of the Borrowing Base; provided thatImprovements by the Inspector, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
times (ii) the proposed date estimated total construction costs filed by Borrower and General Contractor and approved by Lender, (minus the Retainage, as set forth in this ----- Section, and any Advances previously made on account of the cost of materials stored on the Property). Prior to each Advance, at Borrower's expense, an appointed inspector shall inspect the Improvements to verify that the request for an Advance accurately reflects the amount of construction completed to date. Notwithstanding the foregoing, Lender shall withhold the Retainage, provided that when the Project is 50% complete as certified by the Inspector for the Project and provided no Event of Default has occurred and is continuing after the giving of any applicable Notice and the lapse of any applicable cure periods, the Retainage will be reduced to the greater of the retainage rate specified in the General Contractor's contract or five percent (5%). The Retainage shall be held until Completion, provided, however, that if: (i) no Event of Default has occurred and is continuing after the giving of any applicable notice and the lapse of any applicable cure periods, (ii) Lender receives certification from the Inspector that all such Advance;
work is complete; and (iii) a representation that Lender receives appropriate lien waivers, the Retainage for up to three trades (selected by Borrower and approved by Lender, which approval will not be unreasonably withheld) will be released upon full completion of all conditions precedent work on the Project for each particular trade selected;
7.6.3 Borrower shall furnish Lender and the Title Company with any evidence, lien waivers, or affidavits required by the Title Company at the time of each request for an Advance described to insure that all bills then due and payable for labor and materials used in Article III hereof constructing the Improvements and all bills due and payable to contractors, subcontractors, laborers, and materialmen have been satisfiedpaid in full, except those bills to be paid with such Advance. With each request for an Advance to be used for contract payments of at least $50,000, Borrower shall deliver to Lender and the Title Company waivers of liens from contractors in the respective sum received by each such contractor for all of Borrower's preceding requests for Advances.
7.6.4 Borrower will have the right to reallocate line items in the Budget, subject to the following: (i) proper substantiation for adjustments is delivered to Lender, (ii) no adjustments may be made between hard and soft costs until after Completion of the Project, at which time savings in hard cost line items may be reallocated to soft cost line items, (iii) no adjustments shall be permitted to the equity or interest reserve line items; and
and (iv) the amount of cash that will be funded into the Unfunded Exposure Account any reallocation must involve at least $10,000 in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.total adjustments;
Appears in 1 contract
Sources: Line of Credit Agreement (Grand Court Lifestyles Inc)
Procedure for Advances. With respect to each Advance, Borrower must deliver to CoBank (a) During including by facsimile transmission), not later than five Business Days preceding the Reinvestment Periodrequested Advance Date, an Advance Request which has been signed by an officer of Borrower and Guarantor. The Advance Request shall be effective on the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request received if actually received by CoBank before 3:00 p.m., Mountain Time, and as of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a next Business Day if delivered received by CoBank after such time. If the Advance Request is submitted by facsimile transmission, Borrower shall deliver to CoBank, no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered the Advance Date, the originally executed Advance Request. All Advance Requests submitted by such time, Borrower shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Dayirrevocable. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specifyRequest must:
(i) identify the aggregate amount of such Advance which amount shall not cause Underlying Borrower(s) and the Advances Outstanding to exceed the Borrowing Base; provided thatSystem(s), except Paging System or Contiguous System(s) with respect to which Borrower will be lending the proceeds of the System Loan(s), Paging Loan(s) or Acquisition Loan(s), as applicable, or (ii) state that the requested funds are for a Guarantor Repayment Loan the proceeds of which will be paid to Guarantor;
(b) certify that the funds requested in the Advance Request will be used for purposes permitted under Article 3 of this Agreement and state such purposes;
(c) include as an attachment (i) (except where the Advance pursuant Request pertains to Section 2.02(fa Guarantor Repayment Loan), the Underlying Borrower Advance Request and all attachments thereto or accompanying materials, or (ii) where the Advance Request pertains to a Guarantor Repayment Loan, the request for repayment of the Principal Reduction Loan submitted by Guarantor to Borrower; and
(d) be in the minimum amount of such Advance must be at least equal to the lesser of (i) $500,000;
1,000,000 or (ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the maximum amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advancewhich, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available advanced pursuant to the Agent on the applicable Advance Date Request, will not result in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share a violation of such Advance and upon receipt Section 2.1 of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingthis Agreement.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Administrative Agent (who will provide and each Lender with a copy promptly upon receipt thereof)Agent, with a copy to the Trustee Collateral Agent and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Administrative Agent and each Lender Agent on a Business Day if delivered no later than 3:00 2:00 p.m. (New York City time) on the proposed date of such Business Day and Advance and, if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing BaseAdvance; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded by the Transferor into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance should be remitted to the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writingwriting or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such Advance into the Unfunded Exposure Account, as applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Make-Whole Premium, if any, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity DatePeriod.
(e) Determinations A determination by any Institutional Lender or Liquidity Bank of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, upon the occurrence of an Event of Default or on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Aggregate Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)) other than an Event of Default related to a Bankruptcy Event with respect to the Borrower.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Golub Capital BDC, Inc.)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject Subject to and in accordance with the terms and conditions of Sections 2.01 this Agreement, Lender will make Advances on the Loan at any time and 2.02 from time to time during the Initial Revolving Credit Period (and subject the First Extended Revolving Credit Period and Second Extended Revolving Credit Period, as applicable, if the Initial Maturity Date of the Loan is extended pursuant to the provisions terms of Article III hereofSection 2.01) upon timely prior written notice signed by an Authorized Individual (“Borrowing Notice”) from Borrower to Lender (i) specifying (A) the desired amount of the Advance; and (B) the date on which the proceeds of such Advance are to be made available to Borrower, which must be a Business Day; and (ii) if the aggregate total of the Down Payments with respect to all Eligible Vehicles then financed hereunder is less than $20 million, stating the balance in the Capitalization Account. Such Borrowing Notice shall be in the form of the notice attached hereto as Exhibit B and shall be accompanied by invoices, the amortization schedules determined in accordance with Section 2.01(a) and 2.01(c) for the Advance for each Eligible Vehicle financed with such Advance and other supporting documentation reasonably acceptable to Lender evidencing Borrower’s intended use of such funds for the purposes set forth in Section 2.08 of this Agreement. Each Borrowing Notice must be received by Lender no later than Noon (Eastern time) five Business Days prior to the date on which the Advance is to be made. Subject to the terms and conditions of this Agreement, provided that Lender has received the Borrowing Notice, Lender shall (unless Lender determines in its sole discretion that any applicable condition specified herein has not been satisfied) pay to Borrower the proceeds of such Advance by crediting the amount of the Advance to the seller of the Eligible Vehicle financed with such Advance not later than 3:00 p.m. (Eastern Time) on the Business Day specified in said Borrowing Notice.
(b) Each Advance shall be made Borrower hereby irrevocably authorizes Lender to rely on at least telephonic, telecopy, e-mail or written instructions of any individual identifying himself or herself as one Business Day’s irrevocable written notice of the Authorized Individuals listed on Schedule 2.02(b) (or any other individual from the time to time authorized to act on behalf of Borrower pursuant to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received resolution adopted by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day Board of Directors of Borrower and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower certified by the Agent (who will provide the Swingline Lender Secretary of Borrower and each other Lender with a copy promptly upon receipt thereof), with a copy delivered to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City timeLender) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, any request to make an IntraLinks (Advance or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)repayment hereunder, and on any signature which Lender believes to be genuine, and Borrower shall specify:
(i) be bound thereby in the aggregate amount of same manner as if such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of person were actually authorized or such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingsignature were genuine.
(c) The Advances Each Borrowing Notice shall bear interest at become irrevocable on the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and second Business Day prior to the end of date the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination Advance is required to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest errormade.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Financing Agreement (Vanguard Car Rental Group Inc.)
Procedure for Advances. (a) During Not less than three (3) Business Days prior to the Reinvestment Periodapplicable Borrowing Date, the Lenders will make Advances and the Swingline Agent shall deliver written notice to each Lender will make Swingline Advances on any Business Day at the request address specified by each Lender from time to time which notice shall include such Borrowing Date and such Lender’s ratable share of such Advance. Within seven (7) days after such Borrowing Date, the Borrower, subject Agent shall deliver to and in accordance with each Lender any items reasonably requested by the terms and conditions of Sections 2.01 and 2.02 and subject Agent or a Lender to the provisions of Article III hereofextent such items have not previously been delivered and to the extent in the Agent’s possession, but Agent’s failure to do so shall not affect Borrower’s rights under this Agreement. The Lenders shall make the requested Advance on the Borrowing Date so long as all conditions to such Advance are satisfied as determined by the Agent. Unless otherwise notified by the Agent, each Lender may assume that all conditions to such Advance are satisfied on the Borrowing Date.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no Not later than 3:00 p.m. (10:30 a.m. New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article IIIthe Draw Request, each Lender shall make available to for the account of the Agent on the applicable Advance Date at its address referred to in same day funds by no later than 12:00 noonSection 11.5 hereof, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount such Lender’s ratable portion of such Swingline Advance and upon Advance. After the Agent’s receipt of such amount with respect to such Swingline Advancefunds and upon fulfillment of the applicable conditions in Sections 3.2, 3.3 and 3.4 hereof, the Agent shall promptly fund will make such amounts by wire transfer funds available to the account which Borrower, on the Borrower has designated Borrowing Date, in writingaccordance with the terms of this Section 3.5.
(c) The Advances Unless Agent shall bear interest at have been notified in writing by any Lender prior to the Yield Ratedate of an Advance that such Lender does not intend to make available to Agent such Lender’s ratable portion of the Advance to be made on such date, Agent may assume that such Lender has made such amount available to Agent on such date, and Agent may make available to Borrower a corresponding amount. If such corresponding amount is not in fact made available to Agent by such Lender on the date of such Advance, Agent shall promptly notify Borrower of such fact by telephone (promptly confirmed in writing), but shall have no obligation to make such corresponding amount available to Borrower. Except as expressly set forth in Sections 3.5.2(d) and 3.5.2(e) below, nothing in this Section 3.5.2 shall be deemed to relieve any Lender from its obligations to fulfill its Commitment or to prejudice any rights which Borrower may have against any Lender as a result of any default by such Lender hereunder. Any Lender which defaults in funding its ratable portion of an Advance under this Agreement (a “Defaulting Lender”) shall indemnify Borrower and the non-defaulting Lenders and hold each of them harmless from and against any and all loss, cost, liability, damage or expense, including, without limitation, reasonable attorneys’ fees and costs arising out of any such default.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no No Lender shall be responsible for any default by any other Lender (except that the Defaulting Lender shall be responsible for its own default and the indemnity provided for in the last sentence of Section 3.5.2(c) above) in its obligation to make Advances hereunder. No Lender shall be obligated to fund its ratable portion of any Advance in the event of the failure of any other Lender to remit fund its Pro Rata Share ratable portion of any such Advance, subject to the provisions of Section 3.5.2(e) below.
(e) If any Lender fails to make its ratable portion of any Advance requested hereunderin accordance with this Agreement and the Loan Documents (an “Advance Default”), Agent shall promptly provide notice thereof to the non-Defaulting Lenders and Borrower and, subject to the remaining provisions of this Section 3.5.2(e), the non-Defaulting Lenders shall have no further obligation to make any Advances. Notwithstanding the foregoing, one or more of the other Lenders (the “Performing Lenders”) may elect to fund all or any portion of the Defaulting Lender’s ratable portion of such Advance (although none of Lenders or Agent shall have any obligation to make any such Advances). For any Advance with respect to which a Lender has agreed to become a Performing Lender and to fully fund the Defaulting Lender’s ratable portion of such Advance, each non-Defaulting Lender shall make its respective ratable portion of such Advance which it was otherwise obligated to make when and as otherwise required to be made by such Lender. In addition, at any time following an Advance Default, either (x) Agent and Borrower may arrange for an existing Lender or a new lender (which shall be an Eligible Assignee and shall be reasonably acceptable to the non-Defaulting Lenders) to become a substitute lender (the “Substitute Lender”) with respect to the Defaulting Lender’s Commitment for the unadvanced amount of the Loan or (y) if no Lender has agreed to become a Performing Lender, the Guarantor or the Limited Guarantor may fund the Defaulting Lender’s ratable portion of the Advance in question and undertake to fund the entire remaining amount of the Defaulting Lender’s Commitment as an additional equity contribution to the Borrower in connection with each subsequent Advance, provided, however, that Guarantor or the Limited Guarantor, as applicable, shall be required to provide assurance of its future performance of such contribution obligations in a manner which is satisfactory to the Agent in its sole and absolute discretion and written confirmation that the Senior Lender has consented to such an arrangement, and provided, further, that such contribution obligations of Guarantor and/or Limited Guarantor shall not be released, reduced, limited or relieved in connection with any release of the Completion Guaranty and/or the Interest and Operating Costs Guaranty in accordance with Section 2.10 above. No such assignment shall release or relieve the Defaulting Lender of any liability for its breach of this Agreement or the Loan Documents or under the indemnity set forth in Section 3.5.2(c) above. Notwithstanding anything contained herein to the contrary, if Agent and Borrower arrange for, and substitute the Defaulting Lender with, a Substitute Lender, or otherwise satisfy the conditions of this Section 3.5.2(e), then the non-Defaulting Lenders’ obligations with respect to all yet unadvanced amounts of the Loan shall continue as if an Advance Default had not occurred.
Appears in 1 contract
Sources: Mezzanine Construction Loan Agreement (Prime Group Realty Trust)
Procedure for Advances. (a) During The Borrower shall request an Advance by (x) delivering a Notice of Borrowing and (y) causing the Reinvestment PeriodPortfolio Asset Servicer to deliver an updated Servicing and Payment Date Report (which, for the Lenders avoidance of doubt, will make Advances and not specify the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borroweramounts to be remitted pursuant to Section 2.08), subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject each case to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof)Administrative Agent, with a copy to the Trustee and the Collateral CustodianFacility Servicer, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 2:00 p.m. three (New York City time3) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy Days immediately prior to the Trustee and the Collateral Custodian, in the form proposed date of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has accessAdvance. Each Notice of Borrowing shall include must be accompanied by a duly completed Borrowing Base Certificate and Portfolio LTV Certificate (each updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), ) and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such AdvanceAdvance (which must be a Business Day);
(iii) with respect to any Advance, whether the proceeds of such Advance are to be used (A) to fund a representation that all conditions precedent for an Advance described Delayed Draw (or to fund the Operating Account pursuant to Section 8.04(c)(ii) in Article III hereof have been satisfied; andorder to cash collateralize any Delayed Draw Unfunded Amount) or (B) in connection with the Transfer of a Loan Asset and the payment of the fees and expenses of the Loan Parties with respect thereto as permitted by this Agreement;
(iv) if the proceeds of such Advance are to be used to fund a Delayed Draw, the amount of cash that will such Delayed Draw and the Delayed Draw Loan Asset to which it applies;
(v) if the proceeds of such Advance are to be funded into the Unfunded Exposure Account used in connection with the Advance, if applicable. On the date Transfer of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may Loan Asset (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event an Eligibility Criteria Checklist confirming compliance with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent Eligibility Criteria” set forth in Section 3.02).
on Schedule III hereto (g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other unless such criteria has been waived by the Initial Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.Majority Lenders)
Appears in 1 contract
Procedure for Advances. A. At the time of each Advance, there shall exist no default or Event of Default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date. Each Advance shall be made pursuant to a Draw Request submitted by Borrower to Agent on behalf of the Lenders.
B. Not later than 10:00 A.M. (aMinneapolis time) During two (2) Eurodollar Business Days prior to the Reinvestment PeriodAdvance Date if any portion of the requested Advance is desired by Borrower to be a Eurodollar Rate Advance, and one Business Day prior to the Advance Date if any portion of the requested Advance is to be a Reference Rate Advance, Borrower shall deliver to Agent (with a copy to each Lender) a request, in writing, designating the amount of such portion (in the minimum amount of $1,000,000.00 and in integral multiples of $100,000.00 in excess thereof) and designating the initial Interest Period applicable thereto. Notwithstanding anything herein set forth to the contrary, there may not be more than five (5) Eurodollar Rate Advances outstanding at any given time during the term of the Note. If no such request is made by Borrower with respect to any Advance, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrowerentire Advance shall be deemed to be a Reference Rate Advance.
C. On each Advance Date, subject to and in accordance with if all the terms and conditions of Sections 2.01 and 2.02 and subject this Agreement have been complied with by Borrower, to the provisions satisfaction of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from Lenders, if no default or Event of Default exists hereunder, and if Lenders have approved the Borrower to the Agent (who will provide Draw Request, each Lender with shall advance to Agent its Commitment Percentage of the principal amount of the requested Advance by delivering to Agent a copy promptly upon receipt thereof), with a copy wire transfer of funds. Agent shall then forward the Advance to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing Borrower. All Advances actually so made shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such timebe loans to Borrower, shall be deemed to have been received on reduce the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use available amount of the proceeds thereof)Revolving Loan Commitment, and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Raterates provided herein from the date so advanced.
(d) Subject to Section 2.18 and D. To the other terms, conditions, provisions and limitations set forth herein (including, without limitation, extent agreed upon by the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available)Lenders, each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b)also have the right, notwithstanding anything but not the obligation, to advance and directly apply the proceeds of any Advance to the contrary herein (including, without limitation, the Borrower’s failure to satisfy satisfaction of any of Borrower's obligations hereunder or under the conditions precedent set forth in Section 3.02).
(g) The obligation other Loan Documents. Any Advance by a Lender for such purpose shall be part of the Loan and shall be evidenced and secured by the Loan Documents from the date made. Borrower hereby authorizes each Lender to remit its Pro Rata Share hold, use, advance and apply Loan proceeds for the payment or performance of any obligation of Borrower hereunder, including but not limited to the obligation to pay interest on the Loan.
E. In the event that a Lender shall determine, in its sole judgment, that proper documentation to support a requested Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be several from that so supported by proper documentation, and shall promptly notify Borrower of the discrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of such Lender, it may withhold such funds.
F. Borrower shall provide notice to Agent in the Draw Request of the proposed use of the requested Advance. If Borrower anticipates using the Advance for purposes of financing construction on a Real Estate Asset Under Development, Borrower shall provide evidence to Agent at the time of each other Lender and such Draw Request that Borrower has entered into leases for not less than fifty percent (50%) of the failure rentable square footage of any Lender such Real Estate Asset Under Development. If Borrower fails to so provide the foregoing evidence, Lenders shall have no obligation to make the requested Advance for such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunderconstruction.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one two Business Day’s Days’ irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.. USActive 52762757.1552762757.22 53
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a LIBOR Advance or a Base Rate Advance. For each LIBOR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Collateral Custodian and the Account Bank) no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks a Deal Interactive (or other replacement) website to which the Administrative Agent and each Lender has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBOR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded by the Transferor or the Borrower into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance (or portion thereof) should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance, by payment into the Advance and upon receipt Funding Account or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such amounts with respect to such AdvanceAdvance into the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBOR Advance shall bear interest at the applicable LIBOR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred and is continuing, the Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the Conversion Date on which such Base Rate Advance is to be converted into a LIBOR Advance.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), ifIf, on the last day of the Reinvestment PeriodPeriod (or no later than three Business Days after the occurrence of an Event of Default if the Reinvestment Period ends due to the occurrence of an Event of Default), the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall after taking into account the amounts required to be deposited into the Unfunded Exposure Account in accordance with clause (iii) below (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (as described in clause (ii) below), each Lender shall fund such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Lender’s Advances to exceed such Lender’s Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available)) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default, each Lender shall fund such have a funding obligation with respect to the Unfunded Exposure Amount Shortfall in accordance with under this Section 2.02(b), notwithstanding anything 2.02(f) solely to the contrary herein extent that (includingA) the Borrower shall have, without limitationprior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(viii) or by an equity contribution by CCT or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower’s failure Borrower shall not be required to satisfy any fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default or the last day of the conditions precedent set forth in Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 3.02)2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Corporate Capital Trust, Inc.)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a SOFR Advance or a Base Rate Advance; provided that such the Borrower shall not deliver more than two Notices of Borrowing in one week. For each SOFR Advance, the Borrower shall deliver a Notice of Borrowing shall be deemed to have been received by the Administrative Agent on and each Lender (with a Business Day if delivered copy to the Account Bank and the Collateral Administrator) no later than 3:00 p.m. (New York City time) at least two Business Days before the Business Day on which the SOFR Advance is to be made; provided that if such Notice of Borrowing is delivered later than 3:00 p.m. on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender (with a copy to the Collateral Administrator and the Account Bank) no later than 3:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 3:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing BaseBase (calculated on a “settlement date” basis, after giving pro forma effect to any purchases and sales on such settlement date); provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date (which shall be a Business Day) and whether such Advance will be a SOFR Advance or a Base Rate Advance;
(iii) for any SOFR Advance, whether the Borrower selects a one-month maturity or a three-month maturity;
(iv) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(ivv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(vi) whether such Advance (or portion thereof) should be remitted to an account specified by the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writingwriting or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such Advance into the Unfunded Exposure Account; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each SOFR Advance shall bear interest at the applicable SOFR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred (and has not been waived), the Borrower may request that the Administrative Agent convert (i) any Base Rate Advance, in whole and not in part, to a SOFR Advance, (ii) any SOFR Advance, in whole and not in part, to a Base Rate Advance, (iii) any SOFR Advance with a three-month maturity, in whole and not in part, to a SOFR Advance with a one-month maturity or (iv) any SOFR Advance with a one-month maturity, in whole and not in part, to a SOFR Advance with a three-month maturity, in each case, by delivering a Conversion Notice to the Administrative Agent no later than 3:00 p.m. at least two Business Days before the Conversion Date on which (w) such Base Rate Advance is to be converted into a SOFR Advance, (x) such SOFR Advance is to be converted into a Base Rate Advance, (y) such SOFR Advance with a three-month maturity is to be converted into a SOFR Advance with a one-month maturity or (z) such SOFR Advance with a one-month maturity is to be converted into a SOFR Advance with a three-month maturity, as applicable. All Advances and all interest thereon shall be due and payable in full on the Facility Maturity Date.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Make-Whole Premium, if any, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay fee or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Datepremium.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error[Reserved].
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, upon the occurrence of an Event of Default (that has not been waived) or on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Aggregate Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Pro Rata Share of Advances to exceed such ▇▇▇▇▇▇’s Pro Rata Share of its Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default (that has not been waived), each Lender shall have a funding obligation with respect to the Unfunded Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (A) the Borrower shall have, prior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(ix) or by an equity contribution by the Transferor or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default (that has not been waived) or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (AMG Comvest Senior Lending Fund)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the pursuant to (i) a Draw Request with respect to Construction Project Loans, or (ii) an Application and Certificate for Payment with respect to Development Project Loans, both of which shall be submitted by Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy and to the Trustee Inspecting Architect. With respect to each Development Project, Borrower shall not submit more than one (1) Application and the Collateral CustodianCertificate for Payment during any thirty (30) day period. With respect to Construction Projects, in the form of a Notice of Borrowing; provided that such Notice of Borrower shall not submit more than two (2) Draw Requests during any thirty (30) day period.
(b) Borrower shall deliver to Lender an updated Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received Base Certificate on the following Business Dayfirst (1st) day of each month. Each Swingline Borrower shall also deliver to Lender a revised Borrowing Base Certificate with each request for an Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingConstruction Project Loan.
(c) The On each Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower to the satisfaction of Lender, if no default or event of default exists hereunder, and if Lender has approved (i) each Draw Request for each Construction Project for which Borrower has submitted a Draw Request, and (ii) each Application and Certificate for Payment for each Development Project for which Borrower has submitted an Application and Certificate for Payment, Lender shall advance to Borrower the principal amount of each requested Advance by wire transfer of funds for the amount set forth in the applicable Draw Request or Application and Certificate of Payment (less any required retainage, which retainage shall not be deemed to be advanced hereunder and shall not bear interest until actually advanced, and less any amounts so advanced by Lender to itself). All Advances actually so made shall be deemed to be loans to Borrower, and all Construction Project Loan Advances shall reduce the available amount of the Revolving Loan and of the Construction Project Loan for the related Project (if any), and shall bear interest at the Yield Raterates provided herein from the date so advanced.
(d) Subject Lender may take such steps as it may deem appropriate, at its option, to Section 2.18 verify the application of Project Loan proceeds to Costs of the related Project, and to vary the advancement procedures herein set forth if the same becomes necessary or desirable to assure the proper application of Project Loan proceeds and/or to preserve the first lien status of the Mortgage covering the Project with respect to Advances made pursuant hereto including, but not limited to, making Advances directly to the General Contractors and/or subcontractors, and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment amount of the Commitment Termination Premium, if any, as applicable), Advances to be made to the Borrower may (i) borrow and reborrow Advances without hereunder shall be correspondingly reduced. However, Lender shall not be obligated to conduct any penalty, on and after the Restatement Date and prior such verification or to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Dateso vary said procedures.
(e) Determinations In the event that Lender shall determine, in its reasonable judgment, that proper documentation to support a given Advance, as required by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns this Agreement, has not been furnished, it may withhold payment of such event)Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the effect discrepancy in or omission of any Eurodollar Disruption Event on its making such documentation. Until such time as such discrepancy or maintaining Advances at LIBORomission is corrected to the satisfaction of Lender, shall be conclusive absent manifest errorit may withhold such funds.
(f) Notwithstanding anything to At the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation time of each Lender to remit its Pro Rata Share Advance, there shall exist no default or event of any Advance default hereunder, and all representations and warranties made herein shall be several from that true and correct on and as of each other Lender and Advance Date with the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereundersame effect as if made on that date.
Appears in 1 contract
Sources: Revolving Construction and Development Loan Agreement (Lundgren Bros Construction Inc)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a SOFR Advance or a Base Rate Advance; provided that the Borrower shall not deliver more than two Notices of Borrowing in one week. For each SOFR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Account Bank and the Collateral Administrator) no later than 1:00 p.m. at least two Business Days before the Business Day on which the SOFR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender (with a copy to the Collateral Administrator and the Account Bank) no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing BaseBase (calculated on a “settlement date” basis, after giving pro forma effect to any purchases and sales on such settlement date); provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date (which shall be a Business Day) and whether such Advance will be a SOFR Advance or a Base Rate Advance;
(iii) for any SOFR Advance, whether the Borrower selects a one-month maturity or a three-month maturity;
(iv) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(ivv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(vi) whether such Advance (or portion thereof) should be remitted to an account specified by the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noonBorrower, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount such ▇▇▇▇▇▇’s Pro Rata Share of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay writing or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.AmericasActive:18709990.5
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a SOFR Advance or a Base Rate Advance. For each SOFR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Account Bank) no later than 1:00 p.m. at least two Business Days before the Business Day on which the SOFR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date (which shall be a Business Day) and whether such Advance will be a SOFR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance (or portion thereof) should be remitted to an account specified by the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writingwriting or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such Advance into the Unfunded Exposure Account; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each SOFR Advance shall bear interest at the applicable SOFR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred (and has not been waived), the Borrower may request that the Administrative Agent convert (i) any Base Rate Advance, in whole and not in part, to a SOFR Advance or (ii) any SOFR Advance, in whole and not in part, to a Base Rate Advance, in each case, by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least two Business Days before the Conversion Date on which (x) such Base Rate Advance is to be converted into a SOFR Advance or (y) such SOFR Advance is to be converted into a Base Rate Advance, as applicable. All Advances and all interest thereon shall be due and payable in full on the Facility Maturity Date.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Make-Whole Premium, if any, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay fee or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Datepremium.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error[Reserved].
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, upon the occurrence of an Event of Default (that has not been waived) or on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Aggregate Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Pro Rata Share of Advances to exceed such ▇▇▇▇▇▇’s Pro Rata Share of its Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default (that has not been waived), each Lender shall have a funding obligation with respect to the Unfunded Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (A) the Borrower shall have, prior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(vii) or by an equity contribution by the Transferor or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default (that has not been waived) or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Onex Direct Lending BDC Fund)
Procedure for Advances. (a) During Subject to the Reinvestment Periodterms of this Agreement, the Lenders will make Advances and amount of each Advance for the Swingline Lender will make Swingline Advances Construction Allocation shall not exceed a sum calculated by multiplying the Construction Allocation portion of the Loan amount times the percentage of completion of the Improvements less the total aggregate amount of funds previously disbursed under such Loan for the Construction Allocation, less applicable Retainage, provided however, that the total amount advanced shall never exceed the original principal amount of the Note. Percentage of completion of the Improvements shall be determined in the reasonably discretion of the Lender.
(b) Subject to the terms of this Agreement, the amounts available for the Non Construction Allocation shall be advanced, but only to the extent that such charges have been incurred, or that the Borrower is otherwise entitled to payment on any Business Day at account of such items as provided for in the request of Approved Budget or otherwise in accordance with the Loan Documents.
(c) Each Application for Advance shall be made in writing, signed by the Borrower, subject and shall be accompanied by a certificate prepared by the Borrower, or at Lender’s election, Borrower’s Supervision Professional, which certificate shall state the percentage of completion of the Improvements and the services and/or materials to be paid for therefrom. Upon approval of such certificate by the Lender, the Advance shall be made. Prior to approval by Lender, the Lender shall be entitled to make any and all inspections and require further documentation from Borrower, all as Lender may deem necessary in order to substantiate and determine the percentage of completion of such Improvements. Lender may retain, at Borrower’s cost, the Inspecting Engineers to complete said inspections and to review the Master Plan and the Plans, prior to approval. Borrower agrees to pay to the Lender the actual cost of each inspection made by the Lender, its employees, agents, or contractors.
(d) Advances shall be made after construction of the Improvements (“Work”) has commenced and shall be made for Work done preceding the date of request upon Lender’s receipt of an Affidavit of Commencement in the form provided on Exhibit “F” attached hereto and made a part hereof for all purposes. Application for Advance shall be filed no more often than twice monthly, shall be filed at least ten working days before the date upon which an Advance is desired, shall be certified by the Supervision Professional, if any, and Borrower, and (if required by Lender) approved by the Inspecting Engineers, shall specify which contractors, subcontractors/suppliers are being paid out of said Advance and in what amounts, making reference to specific line items on the Approved Budget, and shall contain such information as Lender reasonably may request. Lender, at its discretion, may require a Compliance Letter and/or an Inspection Certificate prior to approving any Application for Advance. The amount of each Advance of the Construction Allocation under the Loan shall be the amount which the Contractor has earned under the Construction Contract, as approved by Lender, less amounts for which sums have been previously advanced, less the Retainage as more fully described in subparagraph (e) hereinafter and such amount shall be advanced under the Loan on behalf of Borrower and shall be delivered directly to Borrower. Lender shall not be required to advance funds if in the good faith opinion of Lender (i) the Work is not being completed in a timely and good and workmanlike manner, in accordance with the Plans, (ii) Borrower fails to promptly pay for any labor or materials relating to the Work, or (iii) the portion of the Loan then remaining unadvanced will not be sufficient to complete the Work in accordance with the Master Plan and the Approved Budget, whereupon no additional Advances will be due Borrower unless and until Borrower at its sole cost performs a sufficient portion of the Work so that such portion of the Loan then remaining unadvanced (including the Borrower Deposit as such term is defined in Subsection 1.10 hereinabove) is determined by Lender to be sufficient to so complete the Work. In such latter event, Lender may also require Borrower to provide evidence of availability of additional funds to make up such deficiency and/or may require that the additional funds be held by Lender as part of the Borrower Deposit, to be funded in accordance with the terms and conditions hereof. Notwithstanding the foregoing, completion of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on Work for which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such “Advance is requested and giving pro forma effect the amount of each Advance shall be determined in the reasonable discretion of Lender. Borrower shall utilize all Advances made to it by Lender only for the payment of the costs itemized in the Approved Budget as amended from time to time. Anything to the Advance requested contrary contained in this Section notwithstanding, in the event that Borrower is required to deposit balancing funds with Lender hereunder and the use Property is thereafter completed with subsequent savings that, had they occurred prior to the requirement of the proceeds thereof)balancing funds, and shall specify:
(i) the aggregate amount would have rendered all or a portion of such Advance which amount deposit to be unnecessary, Borrower shall not cause be entitled to a reimbursement of the Advances Outstanding funds deposited equal to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), lesser of (a) the amount of such Advance must be at least equal to $500,000;
subsequent savings or (ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(ivb) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day balancing funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Datedeposit.
(e) Determinations Lender may, at its election, retain the statutory 10% Retainage from each Advance relating to construction of Improvements hereunder in order to allow Borrower to fully comply with Section 53.101 of tire Texas Property Code for the payment of mechanics, materialmen, subcontractors, contractors and artisans or others entitled to liens against the Property for work done or materials supplied (the “Retainage”), such Retainage to be held until thirty days after the date the Lender has received the following: (1) a substantial completion certificate executed by any Inspecting Engineers, the Supervision Professional, Contractor and Borrower, (2) evidence that all Governmental Requirements have been satisfied, including if applicable, but not limited to, delivery to Lender of certificates of occupancy permitting the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination Improvements to be communicated legally occupied, (3) evidence that no mechanic’s or materialmen’s liens or other encumbrances have been filed and remain in effect against the Property, (4) final lien releases or waivers by Contractor, and all subcontractors, materialmen, and other parties who have supplied labor, materials, or services for the construction of the Improvements, or who otherwise might be entitled to claim a contractual, statutory, or constitutional lien against the Property, and (5) issuance by the Title Company of an endorsement to the mortgagee title policy deleting the mechanic’s lien and pending disbursements exceptions and recertifying the survey deletion endorsement, at which time, such retained sums shall be disbursed by Lender to Borrower and then by written notice Borrower to contractors, suppliers, artisans, and others entitled thereto. In the event that Lender does not retain the statutory 10% Retainage from the Agent promptly after the Agent learns each Advance relating to construction of such event)Improvements, or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBORit is agreed that Borrower, upon request by Lender, shall be conclusive absent manifest errorprovide the Lender with proof in form and content satisfactory to the Lender that such statutory Retainage requirement is being complied with by Borrower. At the Lender’s discretion, upon notice to Borrower, the Lender may withhold such Retainage from each such Advance in a special account of Borrower established for that purpose for the use and benefit of those entitled thereto. Notwithstanding anything contained in this Agreement to the contrary, Lender shall not withhold Retainage on materials, soft costs, payments to subcontractors whose work has been completed and who have furnished a final lien waiver and release, and any Construction Contract for which payment and performance bonds acceptable to Lender have been obtained.
(f) Notwithstanding anything All Advances hereunder shall be made directly to the contrary herein (includingBorrower, without limitation, the occurrence of provided if an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Periodhas occurred, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything at its option may make Advances directly to the contrary herein (including, without limitation, the Borrower’s failure contractors, subcontractors, suppliers and artisans for work done, or other person entitled thereto, or jointly to satisfy any of Borrower and the conditions precedent set forth in Section 3.02)applicable third party, or Lender may elect to make one or more Advances through the title company, at Borrower’s expense.
(g) The Any provision in the Loan Documents to the contrary notwithstanding, Lender shall have no obligation to make any Advance hereunder or under any of each the Loan Documents if, as a result of such Advance, Lender to remit its Pro Rata Share would be in violation of any Advance applicable federal or state statute, law, regulation, or interpretation thereof, whether effective or prospective, regarding lending limits imposed upon Lender, including but not limited to the ▇▇▇▇-St. ▇▇▇▇▇▇▇ Depository Institutions Act of 1982, the Federal Reserve Act and applicable interpretive letters issued by the Office of the Comptroller of the Currency.
(h) Any provision hereof or in the Loan Documents to the contrary notwithstanding, the total of the Advances for the Improvements hereunder shall be several from that not exceed the lesser of each other Lender (1) $13,355,000.00; (2) an amount equal to sixty-five percent (65%) of the appraised value of the Property on an “as completed” basis, as set forth in the Appraisal; or (3) an amount equal to sixty-five percent (65%) of Borrower’s costs expended on the Land and Improvements on items included in the failure Approved Budget, exclusive of any Lender developer fees not included in the Approved Budget.
(i) The initial Approved Budget does contain a line item for $637,049.00 in Development Fees, such fees may be funded through Application for Advance as follows:
(1) $10,000.00 per month beginning in the first month Advances for Improvements are made, up to so make such amount available $120,000.00;
(2) $100,000.00 upon substantial completion of the Improvements and obtaining a project certificate of occupancy from the City of Huntsville;
(3) $100,000.00 when the monthly gross rents are equal or greater than the monthly expenses including debt service; and
(4) The balance to be funded at Borrower’s request after Rent Stabilization, to wit: when the Property reaches a 1.30 to 1,00 debt service coverage ratio for 90 consecutive days based on collected rents, a 30 year amortization utilizing an assumed underwriting interest rate equal to the Borrower shall not relieve any other Lender greater of its obligation hereunder. For (i) seven percent (7.00%) per annum or (ii) the avoidance per annum interest rate for a permanent loan quoted in the market at the time of doubt no Lender shall be responsible the calculation for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunderloans on student housing properties.
Appears in 1 contract
Sources: Construction Loan Agreement (Campus Crest Communities, Inc.)
Procedure for Advances. (a) During Subject to the Reinvestment Periodterms of this Agreement, the Lenders will make Advances and amount of each Advance for the Swingline Lender will make Swingline Advances Construction Allocation shall not exceed a sum calculated by multiplying the Construction Allocation portion of the Loan amount times the percentage of completion of the Improvements less the total aggregate amount of funds previously disbursed under such Loan for the Construction Allocation, less applicable Retainage, provided however, that the total amount advanced shall never exceed the original principal amount of the Note. Percentage of completion of the Improvements shall be determined in the reasonably discretion of the Lender.
(b) Subject to the terms of this Agreement, the amounts available for the Non Construction Allocation shall be advanced, but only to the extent that such charges have been incurred, or that the Borrower is otherwise entitled to payment on any Business Day at account of such items as provided for in the request of Approved Budget or otherwise in accordance with the Loan Documents.
(c) Each Application for Advance shall be made in writing, signed by the Borrower, subject and shall be accompanied by a certificate prepared by the Borrower, or at Lender’s election, Borrower’s Supervision Professional, which certificate shall state the percentage of completion of the Improvements and the services and/or materials to be paid for therefrom. Upon approval of such certificate by the Lender, the Advance shall be made. Prior to approval by Lender, the Lender shall be entitled to make any and all inspections and require further documentation from Borrower, all as Lender may deem necessary in order to substantiate and determine the percentage of completion of such Improvements. Lender may retain, at Borrower’s cost, the Inspecting Engineers to complete said inspections and to review the Master Plan and the Plans, prior to approval. Borrower agrees to pay to the Lender the actual cost of each inspection made by the Lender, its employees, agents, or contractors.
(d) Advances shall be made after construction of the Improvements (“Work”) has commenced and shall be made for Work done preceding the date of request upon Lender’s receipt of an Affidavit of Commencement in the form provided on Exhibit “F” attached hereto and made a part hereof for all purposes. Application for Advance shall be filed no more often than twice monthly, shall be filed at least ten working days before the date upon which an Advance is desired, shall be certified by the Supervision Professional, if any, and Borrower, and (if required by Lender) approved by the Inspecting Engineers, shall specify which contractors, subcontractors/suppliers are being paid out of said Advance and in what amounts, making reference to specific line items on the Approved Budget, and shall contain such information as Lender reasonably may request. Lender, at its discretion, may require a Compliance Letter and/or an Inspection Certificate prior to approving any Application for Advance. The amount of each Advance of the Construction Allocation under the Loan shall be the amount which the Contractor has earned under the Construction Contract, as approved by Lender, less amounts for which sums have been previously advanced, less the Retainage as more fully described in subparagraph (e) hereinafter and such amount shall be advanced under the Loan on behalf of Borrower and shall be delivered directly to Borrower. Lender shall not be required to advance funds if in the good faith opinion of Lender (i) the Work is not being completed in a timely and good and workmanlike manner, in accordance with the Plans, (ii) Borrower fails to promptly pay for any labor or materials relating to the Work, or (iii) the portion of the Loan then remaining unadvanced will not be sufficient to complete the Work in accordance with the Master Plan and the Approved Budget, whereupon no additional Advances will be due Borrower unless and until Borrower at its sole cost performs a sufficient portion of the Work so that such portion of the Loan then remaining unadvanced (including the Borrower Deposit as such term is defined in Subsection 1.10 hereinabove) is determined by Lender to be sufficient to so complete the Work. In such latter event, Lender may also require Borrower to provide evidence of availability of additional funds to make up such deficiency and/or may require that the additional funds be held by Lender as part of the Borrower Deposit, to be funded in accordance with the terms and conditions hereof. Notwithstanding the foregoing, completion of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on Work for which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect the amount of each Advance shall be determined in the reasonable discretion of Lender. Borrower shall utilize all Advances made to it by Lender only for the payment of the costs itemized in the Approved Budget as amended from time to time. Anything to the Advance requested contrary contained in this Section notwithstanding, in the event that Borrower is required to deposit balancing funds with Lender hereunder and the use Property is thereafter completed with subsequent savings that, had they occurred prior to the requirement of the proceeds thereof)balancing funds, and shall specify:
(i) the aggregate amount would have rendered all or a portion of such Advance which amount deposit to be unnecessary, Borrower shall not cause be entitled to a reimbursement of the Advances Outstanding funds deposited equal to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), lesser of (a) the amount of such Advance must be at least equal to $500,000;
subsequent savings or (ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(ivb) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day balancing funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Datedeposit.
(e) Determinations Lender may, at its election, retain the statutory 10% Retainage from each Advance relating to construction of Improvements hereunder in order to allow Borrower to fully comply with Section 53.101 of the Texas Property Code for the payment of mechanics, materialmen, subcontractors, contractors and artisans or others entitled to liens against the Property for work done or materials supplied (the “Retainage”), such Retainage to be held until thirty days after the date the Lender has received the following: (1) a substantial completion certificate executed by any Inspecting Engineers, the Supervision Professional, Contractor and Borrower, (2) evidence that all Governmental Requirements have been satisfied, including if applicable, but not limited to, delivery to Lender of certificates of occupancy permitting the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination Improvements to be communicated legally occupied, (3) evidence that no mechanic’s or materialmen’s liens or other encumbrances have been filed and remain in effect against the Property, (4) final lien releases or waivers by Contractor, and all subcontractors, materialmen, and other parties who have supplied labor, materials, or services for the construction of the Improvements, or who otherwise might be entitled to claim a contractual, statutory, or constitutional lien against the Property, and (5) issuance by the Title Company of an endorsement to the mortgagee title policy deleting the mechanic’s lien and pending disbursements exceptions and recertifying the survey deletion endorsement, at which time, such retained sums shall be disbursed by Lender to Borrower and then by written Borrower to contractors, suppliers, artisans, and others entitled thereto. In the event that Lender does not retain the statutory 10% Retainage from each Advance relating to construction of Improvements, it is agreed that Borrower, upon request by Lender, shall provide the Lender with proof in form and content satisfactory to the Lender that such statutory Retainage requirement is being complied with by Borrower. At the Lender’s discretion, upon notice to Borrower, the Lender may withhold such Retainage from each such Advance in a special account of Borrower established for that purpose for the Agent promptly after use and benefit of those entitled thereto. Notwithstanding anything contained in this Agreement to the Agent learns contrary, Lender shall not withhold Retainage on materials, soft costs, payments to subcontractors whose work has been completed and who have furnished a final lien waiver and release, and any Construction Contract for which payment and performance bonds acceptable to Lender have been obtained. Notwithstanding anything contained herein to the contrary, Lender shall retain five percent (5.00%) of such event), or each Advance in lieu of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBORstatutory ten percent (10%) Retainage, and Borrower shall not be conclusive absent manifest errorrequired to provide Lender with proof that such statutory Retainage requirement is being complied with by Borrower.
(f) Notwithstanding anything All Advances hereunder shall be made directly to the contrary herein (includingBorrower, without limitation, the occurrence of provided if an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Periodhas occurred, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything at its option may make Advances directly to the contrary herein (including, without limitation, the Borrower’s failure contractors, subcontractors, suppliers and artisans for work done, or other person entitled thereto, or jointly to satisfy any of Borrower and the conditions precedent set forth in Section 3.02)applicable third party, or Lender may elect to make one or more Advances through the title company, at Borrower’s expense.
(g) The Any provision in the Loan Documents to the contrary notwithstanding, Lender shall have no obligation to make any Advance hereunder or under any of each the Loan Documents if, as a result of such Advance, Lender to remit its Pro Rata Share would be in violation of any Advance applicable federal or state statute, law, regulation, or interpretation thereof, whether effective or prospective, regarding lending limits imposed upon Lender, including but not limited to the ▇▇▇▇-St. ▇▇▇▇▇▇▇ Depository Institutions Act of 1982, the Federal Reserve Act and applicable interpretive letters issued by the Office of the Comptroller of the Currency.
(h) Any provision hereof or in the Loan Documents to the contrary notwithstanding, the total of the Advances for the Improvements hereunder shall be several from that not exceed the lesser of each other Lender (1) $17,167,000.00; (2) an amount equal to seventy percent (70%) of the appraised value of the Property on an “as completed” basis, as set forth in the Appraisal; or (3) an amount equal to seventy percent (70%) of Borrower’s costs expended on the Land and Improvements on items included in the failure Approved Budget, exclusive of any Lender developer fees not included in the Approved Budget.
(i) The initial Approved Budget does contain a line item for $751,698.00 in Development Fees, such fees may be funded through Application for Advance as follows:
(1) Twenty-five percent (25%) to so make such amount available be funded at Borrower’s request with the Initial Advance;
(2) Fifty percent (50%) to be funded monthly based on a straight line basis at Borrower’s request as Advances are made on the Borrower shall not relieve any other Lender Loan; and
(3) The balance equal to twenty-five percent (25%) to be funded at Borrower’s request after the project certificate of its obligation hereunder. For occupancy has been issued by the avoidance City of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunderDenton, Texas.
Appears in 1 contract
Sources: Construction Loan Agreement (Campus Crest Communities, Inc.)
Procedure for Advances. A. At the time of each Advance, there shall exist no default or Event of Default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date. Each Advance shall be made pursuant to a Draw Request submitted by Borrower to Agent on behalf of the Lenders.
B. Not later than 10:00 A.M. (aCentral time) During three (3) Euro Business Days prior to the Reinvestment PeriodAdvance Date if any portion of the requested Advance is desired by Borrower to be a LIBOR Rate Advance, and one Business Day prior to the Advance Date if any portion of the requested Advance is to be a Loan Rate Advance, Borrower shall deliver to Agent a request, in writing, designating the amount of such portion (in the minimum amount of $1,000,000.00 and in integral multiples of $100,000.00 in excess thereof) and designating the initial LIBOR Rate Period applicable thereto. If no such request is made by Borrower with respect to any Advance, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrowerentire Advance shall be deemed to be a Loan Rate Advance.
C. On each Advance Date, subject to and in accordance with if all the terms and conditions of Sections 2.01 and 2.02 and subject this Agreement have been complied with by Borrower, to the provisions satisfaction of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from Agent, if no default or Event of Default exists hereunder, and if Agent has approved the Borrower to the Agent (who will provide Draw Request, each Lender with shall advance to Agent its Commitment Percentage of the principal amount of the requested Advance by delivering to Agent a copy promptly upon receipt thereof), with a copy wire transfer of funds. Agent shall then forward the Advance to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing Borrower. All Advances actually so made shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such timebe loans to Borrower, shall be deemed to have been received on reduce the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use available amount of the proceeds thereof)Revolving Loan Commitment, and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Raterates provided herein from the date so advanced.
(d) Subject to Section 2.18 and D. Each Lender shall also have the other termsright, conditionsbut not the obligation, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, so long as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or exists hereunder, to advance to Agent the existence proceeds of any Advance for application to the satisfaction of any of Borrower's Obligations. Any Advance by a Lender for such purpose shall be part of the Loan and shall be evidenced and secured by the Loan Documents from the date made. Borrower hereby authorizes each Lender, so long as an Unmatured Event of Default exists hereunder, to hold, use, advance and apply Loan proceeds for the payment or a Borrowing Base Deficiency)performance of any obligation of Borrower hereunder, if, including but not limited to the obligation to pay interest on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)Loan.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and this 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance For each LIBOR Advance, the Borrower shall be made on at least one Business Day’s deliver an irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent, with a copy to the Collateral Custodian, no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the Business Day on which the Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Administrative Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBOR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each applicable Advance (other than a Swingline Advance)Date, upon satisfaction of the applicable conditions set forth in Article III, each the Lender shall shall, in accordance with instructions received by the Administrative Agent, either (i) make available to the Agent on Borrower, in same day funds, the applicable amount of such Advance, by payment into the Advance Date Funding Account and/or (ii) remit in same day funds by no later than 12:00 noon, an the amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advanceinto the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each the Lender shall remit (to the extent required thereby) the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBOR Advance shall bear interest at the applicable LIBOR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. The Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days’ before the LIBOR Conversion Date on which such Base Rate Advance is to be converted into a LIBOR Advance. The Borrower may request that the Administrative Agent convert any LIBOR Advance, in whole and not in part, to a Base Rate Advance by (i) delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days’ before the Base Rate Conversion Date (which shall be a Payment Date on which the Interest Period for such LIBOR Advance ends) on which such LIBOR Advance is to be converted into a Base Rate Advance and (ii) paying in full any Breakage Fees (solely to the extent the Base Rate Conversion Date occurs on any day other than a Payment Date or with less than three Business Days’ prior written notice to the Administrative Agent).
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, including without limitation, limitation the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), ifIf, on the last day of the Reinvestment PeriodPeriod (or within three Business Days after the occurrence of an Event of Default if the Reinvestment Period ends due to the occurrence of an Event of Default), the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made availableas described in clause (ii) below), each the Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, including without limitation, limitation (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) the Lender may fund such Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause the Lender to make an Advance that would result in the aggregate outstanding principal amount of the Advances to exceed the Maximum Facility Amount (without taking into account the proviso set forth in the definition thereof);
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy from the Administrative Agent to the Lender) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default, the Lender shall have a funding obligation with respect to the Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (1) the Borrower shall have, prior to the date of such funding obligation, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(d)(vi) or by an equity contribution by Ares or by any combination of those two methods and (2) such funds, as of the date of such funding, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of the Lender to make an Advance pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation Notwithstanding anything to the contrary set forth herein, the Notice of each Lender to remit its Pro Rata Share of any Borrowing for the Initial Advance shall not be several from that of each other Lender and the failure of any Lender to so make such amount available delivered prior to the Borrower shall not relieve any other Lender of its obligation hereunder. For first Business Day after the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunderClosing Date.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and this 2.02 and subject to the provisions of Article III hereof.
(b) Each For each Advance that is a LIBOR Advance, the Borrower shall be made on at least one Business Day’s deliver an irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent, with a copy to the Collateral Custodian, no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each One Day Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing no later than 1:00 p.m. at least one Business Day before the Business Day on which the One Day Advance is to be made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. on such Business Day, such Notice of Borrowing shall be deemed to have been received by on the following Business Day. For each Base Rate Advance, the Borrower shall deliver an irrevocable written notice in the form of a Notice of Borrowing to the Administrative Agent on a Business Day if delivered no later than 5:00 1:00 p.m. (New York City time) at least one Business Day before the Business Day on which the Base Rate Advance is to be made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Administrative Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBOR Advance, One Day Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each applicable Advance (other than a Swingline Advance)Date, upon satisfaction of the applicable conditions set forth in Article III, each the Lender shall shall, in accordance with instructions received by the Administrative Agent, either (i) make available to the Agent on Borrower, in same day funds, the applicable amount of such Advance, by payment into the Advance Date Funding Account and/or (ii) remit in same day funds by no later than 12:00 noon, an the amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advanceinto the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each the Lender shall remit (to the extent required thereby) the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBOR Advance shall bear interest at the applicable LIBOR Yield Rate. Each One Day Advance shall bear interest at the applicable One Day Advance Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. The Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the LIBOR Conversion Date on which such Base Rate Advance is to be converted into a LIBOR Advance. The Borrower may request that the Administrative Agent convert any One Day Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the LIBOR Conversion Date on which such One Day Advance is to be converted into a LIBOR Advance. The Borrower may request that the Administrative Agent convert any LIBOR Advance, in whole and not in part, to a Base Rate Advance by (i) delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days’ before the Base Rate Conversion Date (which shall be a Payment Date on which the Interest Period for such LIBOR Advance ends) on which such LIBOR Advance is to be converted into a Base Rate Advance and (ii) paying in full any Breakage Fees (solely to the extent the Base Rate Conversion Date occurs on any day other than a Payment Date or with less than three Business Days’ prior written notice to the Administrative Agent). The Borrower may request that the Administrative Agent convert any One Day Advance, in whole and not in part, to a Base Rate Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the Base Rate Conversion Date on which such One Day Advance is to be converted into a Base Rate Advance.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, including without limitation, limitation the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances Outstanding without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances Outstanding without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR or One Day Advance LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), ifIf, on the last day of the Reinvestment PeriodPeriod (or within three Business Days after the occurrence of an Event of Default if the Reinvestment Period ends due to the occurrence of an Event of Default), the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made availableas described in clause (ii) below), each the Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, including without limitation, limitation (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) the Lender may fund such Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause the Lender to make an Advance that would result in the aggregate outstanding principal amount of the Advances to exceed the Maximum Facility Amount (without taking into account the proviso set forth in the definition thereof);
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy from the Administrative Agent to the Lender) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default, the Lender shall have a funding obligation with respect to the Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (1) the Borrower shall have, prior to the date of such funding obligation, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(d)(vi) or by an equity contribution by Ares or by any combination of those two methods and (2) such funds, as of the date of such funding, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of the Lender to make an Advance pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation Notwithstanding anything to the contrary set forth herein, no Notice of each Lender Borrowing for an Advance to remit its Pro Rata Share of any Advance be made after the Third Amendment Effective Date shall be several from that of each other Lender and the failure of any Lender to so make such amount available delivered prior to the Borrower shall not relieve any other Lender of its obligation hereunder. For first Business Day after the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunderThird Amendment Effective Date.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and this 2.02 and subject to the provisions of Article III hereof.
(b) Each For each Advance that is a LIBOR Advance, the Borrower shall be made on at least one Business Day’s deliver an irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent, with a copy to the Collateral Custodian, no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each One Day Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing no later than 1:00 p.m. at least one Business Day before the Business Day on which the One Day Advance is to be made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. on such Business Day, such Notice of Borrowing shall be deemed to have been received by on the following Business Day. For each Base Rate Advance, the Borrower shall deliver an irrevocable written notice in the form of a Notice of Borrowing to the Administrative Agent on a Business Day if delivered no later than 5:00 1:00 p.m. (New York City time) at least one Business Day before the Business Day on which the Base Rate Advance is to be made; provided that if such Notice of Borrowing is delivered later than 1:00 p.m. on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Administrative Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBOR Advance, One Day Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each applicable Advance (other than a Swingline Advance)Date, upon satisfaction of the applicable conditions set forth in Article III, each the Lender shall shall, in accordance with instructions received by the Administrative Agent, either (i) make available to the Agent on Borrower, in same day funds, the applicable amount of such Advance, by payment into the Advance Date Funding Account and/or (ii) remit in same day funds by no later than 12:00 noon, an the amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advanceinto the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each the Lender shall remit (to the extent required thereby) the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBOR Advance shall bear interest at the applicable LIBOR Yield Rate. Each One Day Advance shall bear interest at the applicable One Day Advance Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. The Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days’ before the LIBOR Conversion Date on which such Base Rate Advance is to be converted into a LIBOR Advance. The Borrower may request that the Administrative Agent convert any One Day Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the LIBOR Conversion Date on which such One Day Advance is to be converted into a LIBOR Advance. The Borrower may request that the Administrative Agent convert any LIBOR Advance, in whole and not in part, to a Base Rate Advance by (i) delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days’ before the Base Rate Conversion Date (which shall be a Payment Date on which the Interest Period for such LIBOR Advance ends) on which such LIBOR Advance is to be converted into a Base Rate Advance and (ii) paying in full any Breakage Fees (solely to the extent the Base Rate Conversion Date occurs on any day other than a Payment Date or with less than three Business Days’ prior written notice to the Administrative Agent). The Borrower may request that the Administrative Agent convert any One Day Advance, in whole and not in part, to a Base Rate Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least one Business Day before the Base Rate Conversion Date on which such One Day Advance is to be converted into a Base Rate Advance.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, including without limitation, limitation the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.Make-Whole
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a SOFR Advance or a Base Rate Advance; provided that the Borrower shall not deliver more than two Notices of Borrowing in one week. For each SOFR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Account Bank and the Collateral Administrator) no later than 1:00 p.m. at least two Business Days before the Business Day on which the SOFR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender (with a copy to the Collateral Administrator and the Account Bank) no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing BaseBase (calculated on a “settlement date” basis, after giving pro forma effect to any purchases and sales on such settlement date); provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date (which shall be a Business Day) and whether such Advance will be a SOFR Advance or a Base Rate Advance;
(iii) for any SOFR Advance, whether the Borrower selects a one-month maturity or a three-month maturity;
(iv) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(ivv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(vi) whether such Advance (or portion thereof) should be remitted to an account specified by the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writingwriting or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such Advance into the Unfunded Exposure Account; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each SOFR Advance shall bear interest at the applicable SOFR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred (and has not been waived), the Borrower may request that the Administrative Agent convert (i) any Base Rate Advance, in whole and not in part, to a SOFR Advance, (ii) any SOFR Advance, in whole and not in part, to a Base Rate Advance, (iii) any SOFR Advance with a three-month maturity, in whole and not in part, to a SOFR Advance with a one-month maturity or (iv) any SOFR Advance with a one-month maturity, in whole and not in part, to a SOFR Advance with a three-month maturity, in each case, by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the Conversion Date on which (w) such Base Rate Advance is to be converted into a SOFR Advance, (x) such SOFR Advance is to be converted into a Base Rate Advance, (y) such SOFR Advance with a three-month maturity is to be converted into a SOFR Advance with a one-month maturity or (z) such SOFR Advance with a one-month maturity is to be converted into a SOFR Advance with a three-month maturity, as applicable. All Advances and all interest thereon shall be due and payable in full on the Facility Maturity Date.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Make-Whole Premium, if any, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay fee or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Datepremium.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error[Reserved].
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, upon the occurrence of an Event of Default (that has not been waived) or on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Aggregate Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund its Pro Rata Share of such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default (that has not been waived) (other than the occurrence of a Bankruptcy Event with respect to the Borrower) or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Pro Rata Share of Advances to exceed such ▇▇▇▇▇▇’s Pro Rata Share of its Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default (that has not been waived), each Lender shall have a funding obligation with respect to the Unfunded Exposure Amount Shortfall under this Section 2.02(f) solely to the extent that (A) the Borrower shall have, prior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(ix) or by an equity contribution by the Transferor or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default (that has not been waived) or the last day of the Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Procedure for Advances. (a) During The Administrative Agent will make advances from time to time upon receipt of written request from the Reinvestment PeriodBorrowers in the form designated by the Administrative Agent, provided that after giving effect to the Borrowers' request, the Lenders outstanding principal balance of the Loan would not exceed the lesser of the Credit Facility Committed Amount or the Borrowing Base minus the aggregate face amounts of all Letters of Credit outstanding. Each advance under the Loan shall be in an amount of not less than $1,000,000, and in increments of $250,000 in excess thereof. Advances or the renewal of a Interest Period shall be requested by the Borrowers orally or in writing by 10:00 A.M. (Eastern Time) three (3) Banking Days prior to the Banking Day on which the funds will make Advances and be advanced. The Borrowers shall advise the Swingline Lender will make Swingline Advances on any Business Day Administrative Agent at the request time of such notice which Interest Period they are selecting or whether they are selecting the BorrowerBase Rate. The Administrative Agent shall have no obligation to make any advance if at the time such advance is requested and/or is proposed to be funded, subject to and in accordance with there exists an Event of Default or an event which upon notice or lapse of time or both would constitute an Event of Default under the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereofFinancing Documents.
(b) Each Advance shall be made on In addition, if the Administrative Agent has reason to believe a Default or an Event of Default has occurred, the Borrowers hereby irrevocably authorize the Lenders to make advances of the Loan at least one Business Day’s irrevocable written any time and from time to time, without further request from or notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof)Borrowers, with a copy to which the Trustee and the Collateral CustodianLenders, in their sole and absolute discretion, deem necessary or appropriate to protect the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such timeLenders' interests under this Agreement or otherwise, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment advances of the Commitment Termination PremiumLoan made to cover interest on the Loan, if anyfees, as applicable)and/or Enforcement Costs, the Borrower may (i) borrow and reborrow Advances without any penaltyprior to, on and on, or after the Restatement Date and prior to termination of this Agreement, regardless of whether the end aggregate amount of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender advances of the existence Loan which the Lenders may make hereunder exceeds the Credit Facility Committed Amount. The Lenders shall have no obligation whatsoever to make any advance under this subsection and the making of any Eurodollar Disruption Event with respect one or more advances under this subsection shall not obligate the Lenders to make other similar advances. Any such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds advances will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to evidenced by the contrary herein (including, without limitation, Note secured by the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender Collateral and the failure Deeds of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunderTrust.
Appears in 1 contract
Sources: Financing and Security Agreement (Sunrise Assisted Living Inc)
Procedure for Advances. At least five (a5) During Business Days before the Reinvestment Periodrequested date of each advance (except for the initial advance hereunder), Borrower shall deliver to Administrative Agent a completed Draw Request Package in the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request form of the Borrower, subject Exhibit B. Borrower shall be entitled to and an advance only in an amount approved by Administrative Agent in accordance with the terms of this Agreement and the Loan Documents. Administrative Agent shall not be required to make advances more frequently than once each calendar month. Administrative Agent shall, only upon the satisfaction (in the reasonable opinion of Administrative Agent) of all applicable conditions of Sections 2.01 this Agreement and 2.02 the Loan Documents, make the requested advance to Borrower within one (1) Business Day after such satisfaction. Submission of a Draw Request Package to Administrative Agent shall constitute a certification by Borrower to Administrative Agent that on the date thereof (a) all representations and subject to warranties contained in the provisions of Article III hereof.
Loan Documents are true and correct in all material respects, (b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from the Borrower no Event of Default or Potential Default exists, (c) all conditions herein to the Agent advance, whether or not evidence thereof is required by Administrative Agent, are satisfied (who will provide each Lender with a copy promptly upon receipt thereofexcept to the extent specifically waived by Administrative Agent), (d) the AIA Document G-702 and G-703 forms executed by each Contractor and approved by the Architect, together with a copy all schedules, affidavits, releases, waivers, statements, invoices, bills, and other documents, certificates and information submitted for the Draw Request are complete and correct, and in all material respects what they purport and appear to be for the amount and period applicable to the Trustee Draw Request, (e) all advances previously made to Borrower were disbursed, and the Collateral Custodian, proceeds of the advance requested in the form Draw Request will immediately be disbursed, for payments of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day costs and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, expenses specified in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by Phase 1 Budget or the Agent on a Business Day if delivered Budget, as applicable, for which the advances were made, and for no later than 5:00 p.m. other purpose, (New York City timef) on such Business Day and if not delivered by such timeafter the advance, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements obligations for work and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account costs heretofore incurred by Borrower in connection with the Advance, if applicable. On the date of each Advance Project and which are due and payable will be fully paid and satisfied and (other than a Swingline Advance), upon satisfaction g) any unadvanced portion of the applicable conditions set forth in Article IIILoan to which Borrower is entitled, each Lender shall make available to plus the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share portions of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to Phase 1 Aggregate Cost (before the Agent and upon receipt of such amounts with respect to such Advance, Syndication Event) or the Agent shall promptly fund such amounts to Aggregate Cost (after the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if anySyndication Event), as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination that are to be communicated paid by Borrower from other funds that, to Administrative Agent 's satisfaction, are available, set aside and committed, is or will be sufficient to pay the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default actual unpaid Phase 1 Aggregate Cost or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency)Aggregate Cost, if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)as applicable.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Sources: Construction Loan Agreement (Stratus Properties Inc)
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a SOFR Advance or a Base Rate Advance; provided that the Borrower shall not deliver more than two Notices of Borrowing in one week. For each SOFR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Account Bank and the Collateral Administrator) no later than 1:00 p.m. at least two Business Days before the Business Day on which the SOFR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender (with a copy to the Collateral Administrator and the Account Bank) no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof)) and the current Loan Tape, and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing BaseBase (calculated on a “settlement date” basis, after giving pro forma effect to any purchases and sales on such settlement date); provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date (which shall be a Business Day) and whether such Advance will be a SOFR Advance or a Base Rate Advance;
(iii) for any SOFR Advance, whether the Borrower selects a one-month maturity or a three-month maturity;
(iv) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; andAmericasActive:18709990.5
(ivv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(vi) whether such Advance (or portion thereof) should be remitted to an account specified by the Borrower or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noonBorrower, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount such ▇▇▇▇▇▇’s Pro Rata Share of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to payment into the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.writing or
Appears in 1 contract
Sources: Loan and Servicing Agreement (Oaktree Strategic Credit Fund)
Procedure for Advances. A. At the time of each Advance, there shall exist no default or Event of Default hereunder, and all representations and warranties made herein shall be true and correct on and as of each Advance Date with the same effect as if made on that date. Each Advance (aother than under a Swing Loan) During shall be made pursuant to a Draw Request submitted by Borrower to Agent on behalf of the Reinvestment PeriodLenders. Each Advance under a Swing Loan shall be made pursuant to a Swing Loan Draw Request submitted by Borrower to Agent and Swing Lender (if a party other than Agent).
B. With respect to each Draw Request:
(I) Not later than 10:00 A.M. (Central time) three (3) Euro Business Days prior to the Advance Date if any portion of the requested Advance is desired by Borrower to be a LIBOR Rate Advance, and one Business Day prior to the Advance Date if any portion of the requested Advance is to be a Loan Rate Advance, Borrower shall deliver to Agent a request, in writing, designating the amount of such portion (in the minimum amount of $1,000,000.00 and in integral multiples of $100,000.00 in excess thereof) and designating the initial LIBOR Rate Period applicable thereto. If no such request is made by Borrower with respect to any Advance, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrowerentire Advance shall be deemed to be a Loan Rate Advance.
(II) On each Advance Date, subject to and in accordance with if all the terms and conditions of Sections 2.01 and 2.02 and subject this Agreement have been complied with by Borrower, to the provisions satisfaction of Article III hereof.
(b) Each Advance shall be made on at least one Business Day’s irrevocable written notice from Agent, if no default or Event of Default exists hereunder, and if Agent has approved the Borrower to the Agent (who will provide Draw Request, each Lender with shall advance to Agent its Commitment Percentage of the principal amount of the requested Advance by delivering to Agent a copy promptly upon receipt thereof), with a copy wire transfer of funds. Agent shall then forward the Advance to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing Borrower. All Advances actually so made shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such timebe loans to Borrower, shall be deemed to have been received on reduce the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use available amount of the proceeds thereof)Revolving Loan Commitment, and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Raterates provided herein from the date so advanced.
C. With respect to each Swing Loan Draw Request, Borrower shall deliver any such request no later than 10:00 A.M. (dCentral time) Subject on the requested Advance Date. On each such Advance Date, if all the terms and conditions of this Agreement have been complied with by Borrower, to Section 2.18 the satisfaction of Agent and Swing Lender (if a party other than Agent), if no default or Event of Default exists hereunder, and if Agent and Swing Lender (if a party other than Agent) have approved the other terms, conditions, provisions and limitations set forth herein (including, without limitationSwing Loan Draw Request, the Swing Lender shall advance to Agent the amount of the approved Advance. Agent shall then forward the Advance to Borrower. All Advances actually so made shall be deemed to be loans to Borrower, shall reduce the available amount of the Swing Loan Commitment, and shall bear interest at the rates provided herein from the date so advanced.
D. Each Lender shall also have the right, but not the obligation, so long as an Event of Default exists hereunder, to advance to Agent the proceeds of any Advance for application to the satisfaction of any of Borrower’s Obligations. Any Advance by a Lender for such purpose shall be part of the Loan and shall be evidenced and secured by the Loan Documents from the date made. Borrower hereby authorizes each Lender, so long as an Event of Default exists hereunder, to hold, use, advance and apply Loan proceeds for the payment or performance of any obligation of Borrower hereunder, including but not limited to the obligation to pay interest on the Loan.
E. In the event that Agent (and/or the Swing Lender (if a party other than Agent) in the case of a Swing Loan Request) shall determine, in its sole judgment, that proper documentation to support a requested Advance, as required by this Agreement, has not been furnished, it may withhold payment of such Advance, or of such portion of such Advance as shall not be so supported by proper documentation, and shall promptly notify Borrower of the Commitment Termination Premium, if anydiscrepancy in or omission of such documentation. Until such time as such discrepancy or omission is corrected to the satisfaction of such Agent (and/or the Swing Lender, as applicable), it may withhold such funds.
F. Borrower shall provide notice to Agent in the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end Draw Request of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender proposed use of the existence requested Advance. If Borrower anticipates using the Advance for purposes of any Eurodollar Disruption Event with respect financing construction on a Real Estate Asset Under Development, Borrower shall provide evidence to Agent at the time of each such Lender Draw Request that Borrower or an Approved Subsidiary has entered into leases for not less than fifty percent (any such determination to be communicated to 50%) of the Borrower by written notice from the Agent promptly after the Agent learns rentable square footage of such event), or Real Estate Asset Under Development (which leases must be on arms-length terms and conditions if with an affiliate of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”Borrower). Following receipt of a Notice of Borrowing (which If Borrower fails to provide the foregoing evidence, Agent shall specify have no obligation to make the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund requested Advance for such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)construction.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a LIBOR Advance or a Base Rate Advance. For each LIBOR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Collateral Custodian and the Account Bank) no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBOR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks a Deal Interactive (or other replacement) website to which the Administrative Agent and each Lender has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBOR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded by the Transferor or the Borrower into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance (or portion thereof) should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance, by payment into the Advance and upon receipt Funding Account or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such amounts with respect to such AdvanceAdvance into the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBOR Advance shall bear interest at the applicable LIBOR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred and is continuing, the Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBOR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the Conversion Date on which such Base Rate Advance is to be converted into a LIBOR Advance.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBORLIBOR (or the applicable Benchmark), shall be conclusive absent manifest errordemonstrable error; provided that if a Eurodollar Disruption Event with respect to SMBC has occurred and LIBOR (or the applicable Benchmark) has been replaced with a Benchmark Replacement, such Eurodollar Disruption Event shall no longer be continuing, and interest on such Advances Outstanding on and after the date of such replacement shall accrue interest at the Benchmark Replacement.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), ifIf, on the last day of the Reinvestment PeriodPeriod (or no later than three Business Days after the occurrence of an Event of Default if the Reinvestment Period ends due to the occurrence of an Event of Default), the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Unfunded Exposure AmountsAmount, the Borrower shall request an Advance in the amount of such shortfall after taking into account the amounts required to be deposited into the Unfunded Exposure Account in accordance with clause (iii) below (the “Unfunded Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (as described in clause (ii) below), each Lender shall fund such Unfunded Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, (a) the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02, (b) the occurrence of an Event of Default or (c) the existence of (x) an Unmatured Event of Default or (y) a Borrowing Base Deficiency); provided that:
(i) each Lender may fund such Unfunded Exposure Amount Shortfall in its sole discretion to the extent that doing so would cause such Lender to make an Advance that would result in the aggregate outstanding principal amount of such Lender’s Advances to exceed such Lender’s Commitment;
(ii) the Borrower shall have caused a properly completed Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available)) to be delivered to the Administrative Agent (with a copy to the Lenders) on a timely basis; and
(iii) to the extent the Reinvestment Period has ended due to the occurrence of an Event of Default, each Lender shall fund such have a funding obligation with respect to the Unfunded Exposure Amount Shortfall in accordance with under this Section 2.02(b), notwithstanding anything 2.02(f) solely to the contrary herein extent that (includingA) the Borrower shall have, without limitationprior to the applicable Advance Date, deposited an amount not less than the Unfunded Exposure Equity Amount in the Unfunded Exposure Account pursuant to Section 2.04(a)(viii) or by an equity contribution by (x) prior to the consummation of a Permitted BDC Merger, CCT, and (y) on or after the consummation of each Permitted BDC Merger, the Borrower’s failure applicable Permitted BDC, or by any combination of those two methods and (B) such funds, as of such Advance Date, remain on deposit in the Unfunded Exposure Account. For the avoidance of doubt, the Borrower shall not be required to satisfy any fund the Unfunded Exposure Account unless and until the occurrence of an Event of Default or the last day of the conditions precedent set forth in Reinvestment Period or as required to prevent the occurrence of a Borrowing Base Deficiency. For the further avoidance of doubt, any obligation of a Lender to make an Advance pursuant to this Section 3.02)2.02(f) shall be without prejudice to the obligation of the Borrower to cure any Borrowing Base Deficiency that exists prior to such Advance or results therefrom.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During Notice of Revolving Loan Borrowing, Revolving Loan Note, Etc. Within the Reinvestment Period, limits of the Lenders will make Advances Revolving Loan Borrowing Base and the Swingline Lender will make Swingline Advances on any Business Day at the request Revolving Loan Term, so long as Borrower is in compliance with all of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 this Agreement and 2.02 no Defaulting Event has occurred, Borrower may request borrowings and subject to the provisions may repay and request reborrowings of Article III hereof.
Revolving Loans. Whenever Borrower desires an advance, Borrower shall notify Lender (b) Each Advance which notice shall be made on at least one Business Day’s irrevocable written irrevocable) by telecopy or telephone of the proposed borrowing. Such notice from the Borrower (each, a "Notice of Revolving Loan Borrowing") shall be accompanied by a borrowing base certificate (in a form acceptable to the Agent (who will provide each Lender with a copy promptly upon receipt thereofLender), with a copy to specify the Trustee date of the proposed borrowing and the Collateral Custodianamount proposed to be borrowed. Each Notice of Revolving Loan Borrowing must be received by Lender no later than 11:00 a.m., Hartford, Connecticut time on the day such borrowing is requested. In addition to this Agreement, the Revolving Loans shall be evidenced by a Second Amended and Restated Revolving Loan Note payable to Lender in the form of a Notice of Borrowing; provided that Exhibit A attached hereto (the "Revolving Loan --------- Note"), which Revolving Loan Note shall amend and restate the Existing Revolving Loan Note. Insofar as Borrower may request and Lender shall make Revolving Loans hereunder, Lender shall enter such Notice of Borrowing shall be deemed to have been received by the Agent advances as debits on a Business Day if delivered no later than 3:00 p.m. revolving loan account maintained by Borrower with Lender (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day"Revolving Loan Account"). Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy may also record to the Trustee and the Collateral CustodianRevolving Loan Account, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day accordance with customary accounting practices and if not delivered by such timeprocedures, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) all fees, accrued and unpaid interest, late fees, usual and customary charges for the aggregate amount maintenance and administration of such Advance checking and any other accounts maintained by Borrower with Lender, and other fees and charges which amount shall not cause the Advances Outstanding are properly chargeable to exceed the Borrowing Base; provided thatBorrower under this Agreement, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) all payments, subject to collection, made by or account of indebtedness evidenced by the proposed date of such Advance;
Revolving Loan Account, (iii) a representation that all conditions precedent for an Advance described proceeds of Collateral which are finally paid to Lender in Article III hereof have been satisfied; and
its own office in cash or collected items, and (iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advanceother appropriate debits and credits, if applicable. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, including without limitation, the payment payments of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything to the contrary herein (including, without limitation, the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested interest due hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Revolving Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof. Term Advances shall be made solely on the Eighth Amendment Date (or, solely with respect to SMBC, on the date in which SMBC, in its capacity as a Lender, increases its Term Commitments) by allocating a portion of the Advances Outstanding to the Term Commitment. For the avoidance of doubt, a Term Advance can constitute either a SOFR Advance or a Base Rate Advance (at the election of the Borrower).
(b) Each The Borrower shall request an Advance shall be made on at least one Business Day’s by delivering irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing, in which the Borrower shall specify whether the Advance shall be a LIBORSOFR Advance or a Base Rate Advance. For each LIBORSOFR Advance, the Borrower shall deliver a Notice of Borrowing to the Administrative Agent and each Lender (with a copy to the Collateral Custodian and the Account Bank) no later than 1:00 p.m. at least three Business Days before the Business Day on which the LIBORSOFR Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 3:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. Each Swingline Advance For each Base Rate Advance, the Borrower shall be made on any Business Day on which deliver an irrevocable written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of BorrowingBorrowing to the Administrative Agent and each Lender no later than 1:00 p.m. one Business Day prior to the Business Day on which such Base Rate Advance is to be made; provided that if such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if is delivered no later than 5:00 1:00 p.m. (New York City time) on such Business Day and if not delivered by Day, such time, Notice of Borrowing shall be deemed to have been received on the following Business Day. The Borrower or the Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks a Deal Interactive (or other replacement) website to which the Administrative Agent and each Lender has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of Advance Date and whether such Advance will be a LIBORSOFR Advance or a Base Rate Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and;
(iv) the amount of cash that will be funded by the Transferor or the Borrower into the Unfunded Exposure Account in connection with the any Revolving Loan Asset or Delayed Draw Loan Asset funded by such Advance, if applicable; and
(v) whether such Advance (or portion thereof) should be remitted to the Advance Funding Account or the Unfunded Exposure Account. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall shall, in accordance with instructions received by the Borrower, either (i) make available to the Agent on the applicable Advance Date Borrower, in same day funds by no later than 12:00 noonfunds, an amount equal to such Lender’s Pro Rata Share of such Advance, by payment into the Advance and upon receipt Funding Account or (ii) remit in same day funds an amount equal to such Lender’s Pro Rata Share of such amounts with respect to such AdvanceAdvance into the Unfunded Exposure Account, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writingas applicable; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Unfunded Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances Each LIBORSOFR Advance shall bear interest at the applicable LIBORSOFR Yield Rate. The Base Rate Advances Outstanding shall bear interest at the Base Rate Yield Rate. So long as no Event of Default has occurred and is continuing, the Borrower may request that the Administrative Agent convert any Base Rate Advance, in whole and not in part, to a LIBORSOFR Advance by delivering a Conversion Notice to the Administrative Agent no later than 1:00 p.m. at least three Business Days before the Conversion Date on which such Base Rate Advance is to be converted into a LIBORSOFR Advance.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if anyMake-Whole Premium and Breakage Fees, as applicable), the Borrower may (i) borrow borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Restatement Closing Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and fee or premium after the Restatement Date end of the Reinvestment Period and prior to the Facility Maturity Date.
(e) Determinations A determination by any Lender SMBC of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Administrative Agent promptly after the Administrative Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBORLIBOR (or the applicable Benchmark), shall be conclusive absent manifest demonstrable error.
(f) Notwithstanding anything to ; provided that if a Eurodollar Disruption Event has occurred the contrary herein (includingapplicable Benchmark has been replaced with a Benchmark Replacement, without limitationsuch Eurodollar Disruption Event shall no longer be continuing, and interest on such Advances Outstanding on and after the occurrence of an Event of Default or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency), if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount date of such shortfall (replacement shall accrue interest at the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02)Benchmark Replacement.
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.
Appears in 1 contract
Procedure for Advances. (a) During the Reinvestment Period, the Lenders will make Advances and the Swingline Lender will make Swingline Advances on any Business Day at the request of the Borrower, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made on at least one two Business Day’s Days’ irrevocable written notice from the Borrower to the Agent (who will provide each Lender with a copy promptly upon receipt thereof), with a copy to the Trustee and the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 3:00 p.m. (New York City time) on such Business Day and if not delivered by such time, shall be deemed to have been received on the following Business Day. Each Swingline Advance shall be made on any Business Day on which written notice is received from the Borrower by the Agent (who will provide the Swingline Lender and each other Lender with a copy promptly upon receipt thereof), USActive 52762757.4460819853.6 instructions and directions shall be delivered with a written certification that such instructions and directions are in compliance with the provisions of Section 2.04. The Servicer and the Borrower shall promptly transmit to the Agent by telecopy or e-mail a copy of all instructions and directions given to the Trustee and or the Collateral Custodian, in the form of a Notice of Borrowing; provided that such Notice of Borrowing shall be deemed to have been received by the Agent on a Business Day if delivered no later than 5:00 p.m. (New York City time) on such Business Day and if not delivered Bank by such time, shall be deemed to have been received on the following Business Day. The Borrower or Servicer shall post all Loan Agreements and other loan documents and information with respect to each proposed Eligible Loan Asset, if any, to an IntraLinks (or other replacement) website to which the Agent has access. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that, except with respect to an Advance party pursuant to Section 2.02(f), the amount of such Advance must be at least equal to $500,000;
(ii) the proposed date of such Advance;
(iii) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied; and
(iv) the amount of cash that will be funded into the Unfunded Exposure Account in connection with the Advance, if applicable2.04. On the date of each Advance (other than a Swingline Advance), upon satisfaction of the applicable conditions set forth in Article III, each Lender shall make available to the Agent on the applicable Advance Date in same day funds by no later than 12:00 noon, an amount equal to such Lender’s Pro Rata Share of such Advance and upon receipt of such amounts with respect to such Advance, the The Agent shall promptly fund such amounts by wire transfer transmit to the account which the Borrower has designated in writing; provided that, with respect to an Advance funded pursuant to Section 2.02(f), each Lender shall remit the Advance equal to such Lender’s Pro Rata Share of the Exposure Amount Shortfall in same day funds by no later than 12:00 noon to the Agent Servicer and upon receipt of such amounts with respect to such Advance, the Agent shall promptly fund such amounts to the Unfunded Exposure Account. On the date of any Swingline Advance, the Swingline Lender shall make available to the Agent in same day funds, an amount equal to the amount of such Swingline Advance and upon receipt of such amount with respect to such Swingline Advance, the Agent shall promptly fund such amounts by wire transfer to the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein (including, without limitation, the payment of the Commitment Termination Premium, if any, as applicable), the Borrower may (i) borrow and reborrow Advances without any penalty, on and after the Restatement Date and prior to the end of the Reinvestment Period and (ii) repay or prepay Advances without any penalty, on and after the Restatement Date and prior to the Facility Maturity Date.
(e) Determinations by any Lender of the existence of any Eurodollar Disruption Event with respect to such Lender (any such determination to be communicated to the Borrower by written notice from the Agent promptly after the Agent learns telecopy or e-mail a copy of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) Notwithstanding anything all instructions and directions given to the contrary herein (including, without limitation, the occurrence of an Event of Default Trustee or the existence of an Unmatured Event of Default or a Borrowing Base Deficiency)Bank by the Agent, if, on the last day of the Reinvestment Period, the amount on deposit in the Unfunded Exposure Account is less than the aggregate of all Exposure Amounts, the Borrower shall request an Advance in the amount of such shortfall (the “Exposure Amount Shortfall”). Following receipt of a Notice of Borrowing (which shall specify the account details of the Unfunded Exposure Account where the funds will be made available), each Lender shall fund such Exposure Amount Shortfall in accordance with Section 2.02(b), notwithstanding anything pursuant to the contrary herein (including, without limitation, the Borrower’s failure to satisfy any of the conditions precedent set forth in Section 3.02).
(g) The obligation of each Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Lender and the failure of any Lender to so make such amount available to the Borrower shall not relieve any other Lender of its obligation hereunder. For the avoidance of doubt no Lender shall be responsible for the failure of any other Lender to remit its Pro Rata Share of any Advance requested hereunder.Section
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