Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower to the Agent not later than 11:00 A.M. (Charlotte, North Carolina, time) on the Business Day prior to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower no later than 11:00 A.M. (Charlotte, North Carolina, time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor, (v) the identity of the Borrower to whom such requested Borrowing will be made, and (vi) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof. (b) The Term Loans shall each be made only on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon receipt of a Notice of Borrowing, given by the Term Loan Lender to the Agent no later than 11:00 A.M. (Charlotte, North Carolina, time) on or before October 28, 2003. The Term Loans shall from time to time be of such Interest Period or Interest Periods as are selected by the Term Loan Borrower in accordance with this Agreement; provided, however, that, at no time shall that portion of the principal of the Term Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject to any Interest Period which would extend beyond such next occurring installment payment date. (c) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (Charlotte, North Carolina, time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to such Borrower in the deposit accounts designated by the Borrowers in the Account Designation Letter. (d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date. (e) Unless the Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower that such Lender will not make available to the Agent such Lender’s Ratable Portion of such Borrowing, the Agent may assume that such Lender has made such Ratable Portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 and the Agent may, in reliance upon such assumption, make available to such Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder. (f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) The Borrower hereby requests an initial Loan in the principal amount of [REDACTED] to be made on the Closing Date (the “Initial Loan”) as contemplated in Section 5.03, the proceeds of which shall be retained by the Lenders as contemplated in such Section 5.03. Each other Loan hereunder shall be made on at least five (x5) days’ prior written request from the Borrower to the Administrative Agent and each Group Agent in the form of a Loan Request attached hereto as Exhibit A. Each such request for a Loan shall be made no later than 11:00 a.m. (New York City time) on a Business Day (it being understood that any such request made after such time shall be deemed to have been made on the following Business Day) and shall specify (i) the amount of the Loan(s) requested (which shall not be less than [REDACTED] and shall be an integral multiple of [REDACTED]), (ii) the portion (if any) of such Loan(s) requested that constitute Enhanced Loan(s), (iii) the account to which the proceeds of such Loans shall be distributed, (iv) the date such requested Loan is to be made (which shall be a Business Day and a Settlement Date) (a “Borrowing comprised Date”), (v) a detailed list of Base Rate the Receivables, if any, proposed to be sold to the Borrower on such proposed Borrowing Date, including in respect of each Receivable the name and Billing Address of the related Obligor (or the identification number or code of such Obligor, provided that it includes the State (or commonwealth) in the United States in respect of such Billing Address), the account number or Contract identification number, the Remaining Term, the ADT Credit Score, the Product Type, whether a credit check was completed, the Unpaid Balance, the Financed Unpaid Balance, the aggregate Unpaid Balance of all such Receivables, and such additional detail that the Administrative Agent may from time to time reasonably request, of each Receivable in each case as of the immediately preceding Cut-off Date, and (vi) an Information Package in respect of the Settlement Period immediately preceding such proposed Borrowing Date specified in such Loan Request and as of the most recent Cut-off Date and which shall also contain the pro forma information regarding any such proposed Loans required by Section 3.01(c).
(b) Not later than 1:00 pm (New York City time) on the same Business Day of its receipt of a Loan Request together with the related Information Package pursuant to the foregoing clause (a) (it being understood that if any such Loan Request or Information Package is received by the Administrative Agent after 11:00 a.m. (New York City time) such Loan Request and Information Package shall be deemed to have been received on the following Business Day), the Administrative Agent shall deliver a copy of such Loan Request and Information Package to each Group Agent along with the allocation of the requested Loans among the Groups (which shall be ratable based on the Group Loan Limits, or in the case of any Enhanced Loans, ratable based on the Group Loan Limits of the Enhanced Groups). Each Group Agent shall notify the Administrative Agent no later than 4:00 p.m. (New York City time) on the second (2nd) Business Day preceding such proposed Borrowing Date whether the Lenders in its Group approve or reject the making of the requested Loans; provided, that to the extent that any Group Agent does not notify the Administrative Agent that such Lenders approve such requested Loans on or before 4:00 p.m. (New York City time) on such day, it shall be deemed to have rejected the requested Loans, unless on such day and prior to any proposed reallocation by the Administrative Agent of such Group’s deemed rejected portion of the Ratable Share of the Loans in respect of such requested borrowing, such non-responding Group Agent approves in writing such proposed borrowing in the full amount of such requested Loans. In the event that some but not all of the Groups agree to fund their Ratable Share of the requested Loans, the Borrower may request the Administrative Agent to re-allocate the rejected portion of the requested Loans, and seek approval among the Groups that approved the original requested borrowing, based on the Ratable Share of the Group Loan Limits of such Groups; provided, that there shall be no obligation of any Lender in any Group to fund any such incremental Loans. Upon final allocation, which shall in no event result in the Principal of any Group to exceed its Group Loan Limit, the Administrative Agent shall advise each Group Agent of the amount of the requested Loans to be funded by each Lender in its Group and the allocated share of each Lender of such borrowing (the “Allocated Share”), and each such approving Lender shall make available to the Borrower its Allocated Share of the applicable Loans on the proposed Borrowing Date in accordance with clause (c) below. For the avoidance of doubt, no Lender shall have any obligation to approve any Loan Request and no Loans shall be made on notice, given by a Borrower to the Agent day which does not later than 11:00 A.M. (Charlotte, North Carolina, time) on the Business Day prior to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by constitute a Borrower no later than 11:00 A.M. (Charlotte, North Carolina, time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor, (v) the identity of the Borrower to whom such requested Borrowing will be made, and (vi) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Term Loans shall each be made only on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon receipt of a Notice of Borrowing, given by the Term Loan Lender to the Agent no later than 11:00 A.M. (Charlotte, North Carolina, time) on or before October 28, 2003. The Term Loans shall from time to time be of such Interest Period or Interest Periods as are selected by the Term Loan Borrower in accordance with this Agreement; provided, however, that, at no time shall that portion of the principal of the Term Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject to any Interest Period which would extend beyond such next occurring installment payment dateSettlement Date.
(c) The Agent shall give to On each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Date for any Loans are properly which have been requested and approved in such Notice of Borrowingaccordance with clause (a) and (b) above, the applicable interest rate under Section 2.9(b). Each Lender Lenders shall, before 11:00 A.M. (Charlotte, North Carolina, time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment satisfaction of the applicable conditions set forth herein (including in Article IIIV) and upon the completion of the application of Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), (e) and (f) and Section 7.09, as applicable, with respect to such Settlement Date, make available to the Administrative Agent in immediately available funds their Allocated Share of the Loans with respect to such borrowing, which shall equal the lesser of: (i) the amount requested by the Borrower under clause (a) above, and (ii) the amount which, after giving effect to such Loans and the application of all Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), (e) and (f), as applicable, in each case, on such Borrowing Date, is the largest amount that will not cause (a) the Aggregate Principal to exceed the Facility Limit, (b) the Aggregate Principal less the Principal of all Enhanced Loans to exceed the Borrowing Base, or (c) the Aggregate Principal to exceed the Enhanced Borrowing Base. The Administrative Agent shall make all such funds so received available to such the Borrower in like funds, by wire transfer of such funds in accordance with the deposit accounts designated by the Borrowers instructions provided in the Account Designation Letterapplicable Loan Request.
(d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower Date that such Lender will not make available to the Administrative Agent such LenderL▇▇▇▇▇’s Ratable Portion Allocated Share of such Borrowingborrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion share available to the Agent on the such date of such Borrowing in accordance with this Section 2.3 2.02(c) and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to In such event, if a Lender has not in fact made its Allocated Share of the extent that such Lender shall not have so made such Ratable Portion applicable borrowing available to the Administrative Agent, such then the applicable Lender and such the Borrower severally agree to repay pay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from and including the date such amount is made available to such the Borrower until to but excluding the date such amount is repaid of payment to the Administrative Agent, at (i) in the case of a payment to be made by such BorrowerLender, the interest greater of the Federal Funds Effective Rate and a rate applicable at determined by the time to the Loans comprising such Borrowing Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of such Lendera payment to be made by the Borrower, the Federal Funds Rateinterest rate applicable to the Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender shall repay pays its Allocated Share of the applicable borrowing to the Agent such corresponding amountAdministrative Agent, such then the amount so repaid paid shall constitute such Lender’s Loan as part of included in such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunderBorrowing.
(fe) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no No Lender shall be responsible for the failure of any other Lender to make funds available to the Borrower in connection with any Loan hereunder.
(f) Unless the Administrative Agent shall have received notice from the Borrower prior to be the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made by such other Lender payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of any Borrowingpayment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Appears in 1 contract
Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower to the Agent not later than 11:00 A.M. (Charlotte, North Carolina, New York City time) on the Business Day prior to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower no later than 11:00 A.M. (Charlotte, North Carolina, New York City time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor, therefor and (v) the identity of the Borrower to whom such requested Borrowing will be made, and (vi) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Term Loans shall each be made only on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon receipt of a Notice of Borrowing, given by the Term Loan Lender to the Agent no later than 11:00 A.M. (Charlotte, North Carolina, time) on or before October 28, 2003. The Term Loans shall from time to time be of such Interest Period or Interest Periods as are selected by the Term Loan Borrower in accordance with this Agreement; provided, however, that, at no time shall that portion of the principal of the Term Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject to any Interest Period which would extend beyond such next occurring installment payment date.
(c) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (Charlotte, North Carolina, New York City time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion ratable portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion ratable portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to such Borrower in at the deposit accounts designated by the Borrowers in the Account Designation Letteraforesaid applicable Payment Office.
(dc) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(ed) Unless the Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower that such Lender will not make available to the Agent such Lender’s Ratable Portion of such Borrowing, the Agent may assume that such Lender has made such Ratable Portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 and the Agent may, in reliance upon such assumption, make available to such Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(fe) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) The Borrower hereby requests an initial Loan in the principal amount of $130,357,302.35 to be made on the Closing Date (the “Initial Loan”) as contemplated in Section 5.03, the proceeds of which shall be retained by the Lenders as contemplated in such Section 5.03. Each other Loan hereunder shall be made on at least five (x5) days’ prior written request from the Borrower to the Administrative Agent and each Group Agent in the form of a Loan Request attached hereto as Exhibit A. Each such request for a Loan shall be made no later than 11:00 a.m. (New York City time) on a Business Day (it being understood that any such request made after such time shall be deemed to have been made on the following Business Day) and shall specify (i) the amount of the Loan(s) requested (which shall not be less than $1,000,000 and shall be an integral multiple of $100,000), (ii) the account to which the proceeds of such Loans shall be distributed, (iii) the date such requested Loan is to be made (which shall be a Business Day and a Settlement Date) (a “Borrowing comprised Date”), (iv) a detailed list of Base Rate the Receivables, if any, proposed to be sold to the Borrower on such proposed Borrowing Date, including in respect of each Receivable the name and Billing Address of the related Obligor (or the identification number or code of such Obligor, provided that it includes the State (or commonwealth) in the United States in respect of such Billing Address), the account number or Contract identification number, the Remaining Term, the ADT Credit Score, the Product Type, whether a credit check was completed, the Unpaid Balance, the Financed Unpaid Balance, the aggregate Unpaid Balance of all such Receivables, and such additional detail that the Administrative Agent may from time to time reasonably request, of each Receivable in each case as of the immediately preceding Cut-off Date, and (v) an Information Package in respect of the Settlement Period immediately preceding such proposed Borrowing Date specified in such Loan Request and as of the most recent Cut-off Date and which shall also contain the pro forma information regarding any such proposed Loans required by Section 3.01(c).
(b) Not later than 1:00 pm (New York City time) on the same Business Day of its receipt of a Loan Request together with the related Information Package pursuant to the foregoing clause (a) (it being understood that if any such Loan Request or Information Package is received by the Administrative Agent after 11:00 a.m. (New York City time) such Loan Request and Information Package shall be deemed to have been received on the following Business Day), the Administrative Agent shall deliver a copy of such Loan Request and Information Package to each Group Agent along with the allocation of the requested Loans among the Groups (which shall be ratable based on the Group Loan Limits). Each Group Agent shall notify the Administrative Agent no later than 4:00 p.m. (New York City time) on the second (2nd) Business Day preceding such proposed Borrowing Date whether the Lenders in its Group approve or reject the making of the requested Loans; provided, that to the extent that any Group Agent does not notify the Administrative Agent that such Lenders approve such requested Loans on or before 4:00 p.m. (New York City time) on such day, it shall be deemed to have rejected the requested Loans, unless on such day and prior to any proposed reallocation by the Administrative Agent of such Group’s deemed rejected portion of the Ratable Share of the Loans in respect of such requested borrowing, such non-responding Group Agent approves in writing such proposed borrowing in the full amount of such requested Loans. In the event that some but not all of the Groups agree to fund their Ratable Share of the requested Loans, the Borrower may request the Administrative Agent to re-allocate the rejected portion of the requested Loans, and seek approval among the Groups that approved the original requested borrowing, based on the Ratable Share of the Group Loan Limits of such Groups; provided, that there shall be no obligation of any Lender in any Group to fund any such incremental Loans. Upon final allocation, which shall in no event result in the Principal of any Group to exceed its Group Loan Limit, the Administrative Agent shall advise each Group Agent of the amount of the requested Loans to be funded by each Lender in its Group and the allocated share of each Lender of such borrowing (the “Allocated Share”), and each such approving Lender shall make available to the Borrower its Allocated Share of the applicable Loans on the proposed Borrowing Date in accordance with clause (c) below. For the avoidance of doubt, no Lender shall have any obligation to approve any Loan Request and no Loans shall be made on notice, given by a Borrower to the Agent day which does not later than 11:00 A.M. (Charlotte, North Carolina, time) on the Business Day prior to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by constitute a Borrower no later than 11:00 A.M. (Charlotte, North Carolina, time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor, (v) the identity of the Borrower to whom such requested Borrowing will be made, and (vi) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Term Loans shall each be made only on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon receipt of a Notice of Borrowing, given by the Term Loan Lender to the Agent no later than 11:00 A.M. (Charlotte, North Carolina, time) on or before October 28, 2003. The Term Loans shall from time to time be of such Interest Period or Interest Periods as are selected by the Term Loan Borrower in accordance with this Agreement; provided, however, that, at no time shall that portion of the principal of the Term Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject to any Interest Period which would extend beyond such next occurring installment payment dateSettlement Date.
(c) The Agent shall give to On each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Date for any Loans are properly which have been requested and approved in such Notice of Borrowingaccordance with clause (a) and (b) above, the applicable interest rate under Section 2.9(b). Each Lender Lenders shall, before 11:00 A.M. (Charlotte, North Carolina, time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment satisfaction of the applicable conditions set forth herein (including in Article IIIV) and upon the completion of the application of Collections in accordance with Section 3.01(d) with respect to such Settlement Date, make available to the Administrative Agent in immediately available funds their Allocated Share of the Loans with respect to such borrowing, which shall equal the lesser of: (i) the amount requested by the Borrower under clause (a) above, and (ii) the amount which, after giving effect to such Loans and the application of all Collections in accordance with Section 3.01(d), in each case, on such Borrowing Date, is the largest amount that will not cause (a) the Aggregate Principal to exceed the Facility Limit, or (b) the Aggregate Principal to exceed the Borrowing Base. The Administrative Agent shall make all such funds so received available to such the Borrower in like funds, by wire transfer of such funds in accordance with the deposit accounts designated by the Borrowers instructions provided in the Account Designation Letterapplicable Loan Request.
(d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower Date that such Lender will not make available to the Administrative Agent such Lender’s Ratable Portion Allocated Share of such Borrowingborrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion share available to the Agent on the such date of such Borrowing in accordance with this Section 2.3 2.02(c) and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to In such event, if a Lender has not in fact made its Allocated Share of the extent that such Lender shall not have so made such Ratable Portion applicable borrowing available to the Administrative Agent, such then the applicable Lender and such the Borrower severally agree to repay pay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from and including the date such amount is made available to such the Borrower until to but excluding the date such amount is repaid of payment to the Administrative Agent, at (i) in the case of a payment to be made by such BorrowerLender, the interest greater of the Federal Funds Effective Rate and a rate applicable at determined by the time to the Loans comprising such Borrowing Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of such Lendera payment to be made by the Borrower, the Federal Funds Rateinterest rate applicable to the Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender shall repay pays its Allocated Share of the applicable borrowing to the Agent such corresponding amountAdministrative Agent, such then the amount so repaid paid shall constitute such Lender’s Loan as part of included in such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunderBorrowing.
(fe) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no No Lender shall be responsible for the failure of any other Lender to make funds available to the Borrower in connection with any Loan hereunder.
(f) Unless the Administrative Agent shall have received notice from the Borrower prior to be the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made by such other Lender payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of any Borrowingpayment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Appears in 1 contract
Making Loans. (a) Each The Transaction Revolving Credit Loans made pursuant to Section 2.1(b) shall be made on the Effective Date on notice, given by U.S. Operating Co. to the Agent no later than 11:00 A.M. (xNew York City time) on the second Business Day preceding the Effective Date in the case of Base Rate Loans, and not later than 11:00 A.M. (New York City time) on the third Business Day prior to the Effective Date in the case of Eurocurrency Loans; each General Purpose Revolving Credit Loan Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower an Operating Company to the Agent not later than 11:00 A.M. (Charlotte, North Carolina, New York City time) on the Business Day prior to the date of such proposed Borrowing; and (y) each General Purpose Revolving Credit Loan Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower an Operating Company no later than 11:00 A.M. (Charlotte, North Carolina, New York City time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the General Purpose Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “"Notice of Borrowing”") shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Revolving Credit Borrowing, (ii) the aggregate amount of such proposed Revolving Credit Borrowing, (iii) in the case of General Purpose Revolving Credit Loans, the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor, and (v) the identity of the Borrower to whom such requested Borrowing will be made, and (vi) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower Operating Company for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Revolving Credit Loan Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Additional Term Loans shall each be made only on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon receipt of a Notice of Borrowing, given by the Term Loan Lender U.S. Operating Co. to the Agent no later than 11:00 A.M. (Charlotte, North Carolina, New York City time) on or before October 28the second Business Day prior to the Effective Date in the case of Base Rate Loans, 2003and not later than 11:00 A.M. (New York City time) on the third Business Day prior to the Effective Date in the case of Eurocurrency Loans. The Additional Term Loans shall from time be made as Base Rate Loans unless (subject to time Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Periods therefor. The Notice of such Borrowing for the Additional Term Loans shall specify therein (i) the Effective Date, (ii) the aggregate amount of the U.S. Dollar Term A Loans and the aggregate amount of the U.S. Dollar Term C Loans, and (iii) the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Interest Periods as are selected by the Term Loan Borrower in accordance with this Agreementtherefor; provided, however, that, at no time shall that portion of the principal of the Term aggregate Eurocurrency Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject to any for each Interest Period which would extend beyond such next occurring installment payment datemust be in an amount not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(c) The Agent shall give to each Lender prompt notice of the Agent’s 's receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (Charlotte, North Carolina, New York City time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion 's ratable portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion 's ratable portion of such Borrowing in such Alternative Currency. After the Agent’s 's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to such Borrower in at the deposit accounts designated by the Borrowers in the Account Designation Letteraforesaid applicable Payment Office.
(d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(e) Unless the Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower that such Lender will not make available to the Agent such Lender’s 's Ratable Portion of such Borrowing, the Agent may assume that such Lender has made such Ratable Portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 and the Agent may, in reliance upon such assumption, make available to such Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s 's Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans Loan hereunder shall be made on notice, given by a at least three (3) Business Days’ prior written request from the Borrower to the Administrative Agent not later than 11:00 A.M. (Charlotte, North Carolina, time) on and each Group Agent in the Business Day prior to the date form of a Loan Request attached hereto as Exhibit A. Each such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans request for a Loan shall be made on notice, given by a Borrower no later than 11:00 A.M. a.m. (Charlotte, North Carolina, New York City time) on the third a Business Day prior to the date of (it being understood that any such proposed Borrowing. The Revolving Credit Loans request made in Dollars after such time shall be deemed to have been made as Base Rate Loans unless (subject to Section 2.12on the following Business Day) the Notice of Borrowing specifies that all or a pro rata portion thereof and shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein specify (i) the date amount of such proposed Borrowingthe Loan(s) requested (which shall not be less than $1,000,000 and shall be an integral multiple of $100,000), (ii) the aggregate amount account to which the proceeds of such proposed BorrowingLoans shall be distributed, (iii) the currency of date such proposed Revolving Credit Loansrequested Loan is to be made (which shall be a Business Day) (a “Borrowing Date”), (iv) in a detailed list of the case of a proposed Borrowing in Dollars, the amount thereofReceivables, if any, requested proposed to be Eurocurrency Loans sold to the Borrower on such proposed Borrowing Date, including in respect of each Receivable the name and Billing Address of the related Obligor (or the identification number or code of such Obligor, provided that it includes the State (or commonwealth) in the United States in respect of such Billing Address), the account number or Contract identification number, the Original Term and the initial Interest Period or Periods thereforRemaining Term, (v) the identity FICO Score of the Borrower related Obligor, the original and current outstanding Principal Balance, the applicable interest rate and basis, the monthly payment amount, the aggregate Adjusted Principal Balance of all such Receivables, and such additional detail that the Administrative Agent may from time to whom such requested Borrowing will be madetime reasonably request, of each Receivable in each case as of the immediately preceding Cut-off Date, and (vi) an Information Package in respect of the case of a Settlement Period immediately preceding such proposed Borrowing Date specified in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate Request and as of the Eurocurrency most recent Cut-off Date and which shall also contain the pro forma information regarding any such proposed Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereofrequired by Section 3.01(c).
(b) The Term Loans shall each be made only Not later than 1:00 pm (New York City time) on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation same Business Day of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon its receipt of a Notice of Borrowing, given Loan Request together with the related Information Package pursuant to the foregoing clause (a) (it being understood that if any such Loan Request or Information Package is received by the Term Administrative Agent after 11:00 a.m. (New York City time) such Loan Lender Request and Information Package shall be deemed to have been received on the following Business Day), 751499193.15 22727329 47 the Administrative Agent shall deliver a copy of such Loan Request and Information Package to each Group Agent along with the allocation of the requested Loans among the Groups (which shall be ratable based on the Group Loan Limits). Each Group Agent shall notify the Administrative Agent no later than 11:00 A.M. 4:00 p.m. (Charlotte, North Carolina, New York City time) on the second (2nd) Business Day preceding such proposed Borrowing Date whether the Lenders in its Group approve or reject the making of the requested Loans; provided, that to the extent that any Group Agent does not notify the Administrative Agent that such Lenders approve such requested Loans on or before October 284:00 p.m. (New York City time) on such day, 2003. The Term Loans it shall from time be deemed to time be have rejected the requested Loans, unless on such day and prior to any proposed reallocation by the Administrative Agent of such Interest Period or Interest Periods as are selected Group’s deemed rejected portion of the Ratable Share of the Loans in respect of such requested borrowing, such non-responding Group Agent approves in writing such proposed borrowing in the full amount of such requested Loans. In the event that some but not all of the Groups agree to fund their Ratable Share of the requested Loans, the Borrower may request the Administrative Agent to re- allocate the rejected portion of the requested Loans, and seek approval among the Groups that approved the original requested borrowing, based on the Ratable Share of the Group Loan Limits of such Groups; provided, that there shall be no obligation of any Lender in any Group to fund any such incremental Loans. Upon final allocation, which shall in no event result in the Principal of any Group to exceed its Group Loan Limit, the Administrative Agent shall advise each Group Agent of the amount of the requested Loans to be funded by each Lender in its Group and the Term Loan allocated share of each Lender of such borrowing (the “Allocated Share”), and each such approving Lender shall make available to the Borrower its Allocated Share of the applicable Loans on the proposed Borrowing Date in accordance with this Agreement; providedclause (c) below. For the avoidance of doubt, however, that, at no time Lender shall that portion of the principal of the Term Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject have any obligation to approve any Interest Period which would extend beyond such next occurring installment payment dateLoan Request.
(c) The Agent shall give Other than Withdrawals made pursuant to Section 3.01(g), on each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Date for any Loans are properly which have been requested and approved in such Notice of Borrowingaccordance with clause (a) and (b) above, the applicable interest rate under Section 2.9(b). Each Lender Lenders shall, before 11:00 A.M. (Charlotte, North Carolina, time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Ratable Portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment satisfaction of the applicable conditions set forth herein (including in Article IIIV) and upon the completion of the application of Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), (e) and (f) and Section 7.09, as applicable, with respect to such Borrowing Date, make available to the Administrative Agent in immediately available funds their Allocated Share of the Loans with respect to such borrowing, which shall equal the lesser of:
(i) the amount requested by the Borrower under clause (a) above, and (ii) the amount which, after giving effect to such Loans and the application of all Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), (e) and (f) and Section 7.09, as applicable, in each case, on such Borrowing Date, is the largest amount that will not cause (a) the Aggregate Principal to exceed the Facility Limit or (b) the Aggregate Principal to exceed the Borrowing Base. The Administrative Agent shall make all such funds so received available to such the Borrower in like funds, by wire transfer of such funds in accordance with the deposit accounts designated by the Borrowers instructions provided in the Account Designation Letterapplicable Loan Request.
(d) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower Date that such Lender will not make available to the Administrative Agent such Lender▇▇▇▇▇▇’s Ratable Portion Allocated Share of such Borrowingborrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion share available to the Agent on the such date of such Borrowing in accordance with this Section 2.3 2.02(c) and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to In such event, if a Lender has not in fact made its Allocated Share of the extent that such Lender shall not have so made such Ratable Portion applicable borrowing available to the Administrative Agent, such then the applicable Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(f) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.the
Appears in 1 contract