Request for Borrowing. Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3 (a) must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an Interest Period of one month. Each Loan Notice submitted by a Borrower Party shall be deemed to be a representation and warranty that the applicable conditions specified in Section 6.02 have been satisfied on and as of the date of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
Appears in 1 contract
Sources: Revolving Credit Agreement (Goldman Sachs Private Middle Market Credit II LLC)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan or Letter of Credit that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇ v.54890-8208-0090 v.3▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, as follows:
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) for a LIBOR Rate Loan, Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly by delivery made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to Administrative Agent the provisions of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrowerthis Article II). Each Request for Borrowing shall be deemed to be a request for a LIBOR Rate Loan Notice (whether telephonic unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate Loans hereunder. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or written) shall specify: expense incurred by Agent or any Lender as a result of (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”; provided, that, for the avoidance of doubt, Funding Losses shall not include any losses incurred under Section 2.6(f) or with respect to which Borrower is required to reimburse Agent or any Lender under any other section of this Agreement). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount reasonably determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in effect the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to offer, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Loan or a LIBOR Rate Loan is received by Agent not later than 10 a.m. (Pacific Time), on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 10 a.m. (Pacific Time), of the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) [Intentionally Omitted].
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific Time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Borrower in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender, prior to 9:00 a.m. (Pacific Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(i) Notwithstanding the provisions of Section 2.3(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to Issuing Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (ii) second, to each other non-Defaulting Lender ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other non-Defaulting Lender), (iii) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iv) fourth, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (H) of Section 2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate LoanDocuments (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), it will such Defaulting Lender shall be deemed not to have specified an Interest Period of one month. Each Loan Notice submitted by be a Borrower Party “Lender” and such Lender’s Revolver Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this Section 2.6(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.6(g)(ii) shall be released to Borrower). The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Lender or to the Lenders other than such Defaulting Lender. Any failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund, including Borrower’s right to require Defaulting Lender to reimburse Borrower for any fees, charges or expenses incurred by Borrower under this Section 2.3(g) as a result of the failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
(ii) If any Letter of Credit is outstanding at the time that a Lender becomes a Defaulting Lender then:
(A) such Defaulting Lender’s Pro Rata Share of the Letter of Credit Usage (“Letter of Credit Exposure”) shall be reallocated among the non-Defaulting Lenders in accordance with their respective Pro Rata Shares but only to the extent (x) the sum of all non-Defaulting Lenders’ aggregate Advances plus such Defaulting Lender’s Pro Rata Share of the aggregate Letter of Credit Usage does not exceed the total of all non-Defaulting Lenders’ Revolver Commitments and (y) the conditions specified set forth in Section 6.02 have been 3.2 are satisfied on at such time;
(B) if the reallocation described in clause (A) above cannot, or can only partially, be effected, Borrower shall within one Business Day following notice by the Agent, cash collateralize such Defaulting Lender’s Letter of Credit Exposure (after giving effect to any partial reallocation pursuant to clause (A) above), pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the Agent, for so long as such Letter of Credit Exposure is outstanding; provided, that Borrower shall not be obligated to cash collateralize any Defaulting Lender’s Letter of Credit Exposure if such Defaulting Lender is also the Issuing Lender;
(C) if Borrower cash collateralizes any portion of such Defaulting Lender’s Letter of Credit Exposure pursuant to this Section 2.3(g)(ii), Borrower shall not be required to pay any Letter of Credit Fees to Agent for the account of such Defaulting Lender pursuant to Section 2.3(d) with respect to such cash collateralized portion of such Defaulting Lender’s Letter of Credit Exposure during the period such Letter of Credit Exposure is cash collateralized;
(D) to the extent the Letter of Credit Exposure of the date non-Defaulting Lenders is reallocated pursuant to this Section 2.3(g)(ii), then the Letter of Credit Fees payable to the non-Defaulting Lenders pursuant to Section 2.3(d) shall be adjusted in accordance with such non-Defaulting Lenders’ Letter of Credit Exposure;
(E) to the extent any Defaulting Lender’s Letter of Credit Exposure is neither cash collateralized nor reallocated pursuant to this Section 2.3(g)(ii), then, without prejudice to any rights or remedies of the applicable Borrowing. No Loan may be converted into Issuing Lender or continued as a Loan denominated in a different currencyany Lender hereunder, but instead must be prepaid in the original currency all Letter of Credit Fees that would have otherwise been payable to such Defaulting Lender under Section 2.3(d) with respect to such portion of such Loan and reborrowed Letter of Credit Exposure shall instead be payable to the Issuing Lender until such portion of such Defaulting Lender’s Letter of Credit Exposure is cash collateralized or reallocated;
(F) so long as any Lender is a Defaulting Lender, the Issuing Lender shall not be required to issue, amend, or increase any Letter of Credit, in each case, to the other currency.extent (x) the Defaulting Lender’s Pro Rata Share of such Le
Appears in 1 contract
Sources: Credit Agreement (Ares Commercial Real Estate Corp)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, Borrowing shall be made on a Business Day and each continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email address as Lender may designate to Borrower in accordance herewith), or telefacsimile to Lender at the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3address (or its email address or telefacsimile number) indicated on Exhibit 9.3 attached hereto, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Base Rate Borrowing, a conversion of a Loan Borrower shall give Lender notice not later than noon Pacific Time 1 Business Day prior to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Lender notice no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day the LIBOR Rate Borrowing is to be made, and such notice shall specify that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be available as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the “Loan Date”); (C) the principal amount of Loans to will be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate LoansBorrowing, and any such automatic conversion to Base outstanding LIBOR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified be a LIBOR Rate Loan with an Interest Period of one month. Each Loan Notice submitted (1) month upon expiration of the applicable Interest Period.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Borrowing or a LIBOR Rate Borrowing is received by Lender not later than noon, Pacific Time, on a Borrower Party Business Day or Eurodollar Business Day, as applicable, such day shall be deemed treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before noon, Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) Each Request for Borrowing shall (i) specify, if applicable, among other information, the identity of the Excluded Fund(s) that the proceeds of such Borrowing will be used by Borrower to invest in and the amount of each such Investment and (ii) include a description of all Margin Securities (if any) held or to be acquired by any Loan Party in connection with such Borrowing (including the name of the issuer of such Margin Securities, the owner (or proposed owner) thereof and the number of shares of each class of Margin Securities held or to be acquired by such Person), and the market value thereof, together with a representation description of the other Collateral held by such Loan Party in each case with such detail as may be required to enable Lender to comply with its obligations under Regulation U, and warranty that any other related information reasonably requested by Lender, and, upon request of the applicable conditions specified in Section 6.02 have been satisfied on and Lender, Borrower will provide a Borrower-prepared financial report with respect to the Loan Parties (including a Borrower-prepared balance sheet with respect to the Loan Parties) as of the date end of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencymost recent fiscal month then ended.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each SOFR Loan shall be made on a U.S. Government Securities Business Day. DB2/ 43206048.6
(b) Each Loan shall be made upon written notice, by way of a Request for Borrowing, each conversion of Base Rate Loanswhich Request for Borrowing shall be irrevocable and shall be given by telefacsimile, Term SOFR Loansmail, Alternative Currency Term Rate Loans email or Daily personal service, and delivered to Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loan to another Type of Base Rate Loan, Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is one (1) Business Day prior to the requested Funding Date, and such Request for Borrowing shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a SOFR Loan, Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is two (2) U.S. Government Securities Business Days before the requested Funding Date, and such Request for Borrowing shall specify that a Daily Simple SOFR Loan or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) Loan is requested and state the requested date of the Borrowingamount and, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan, the initial Interest Period applicable thereto (subject to the provisions of this Article II); provided, however, that no Loan or Alternative Currency Term shall be available as a SOFR Loan when any Event of Default has occurred and is continuing. If Administrative Borrower fails to designate a Loan as a SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan, the duration of the Interest Period with respect thereto. If a provided that Administrative Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to may at any time thereafter convert such Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as Loan into a SOFR Loan in accordance with the terms of this Agreement.
(c) If the last day notice provided for in clause (b) of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period this Section 2.7 with respect to a Term Base Rate Loan or a SOFR Loan is received by Lender not later than noon Pacific time, on a Business Day or Alternative Currency Term Rate LoanU.S. Government Securities Business Day, it as applicable, such day shall be treated as the first Business Day or U.S. Government Securities Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before noon Pacific time, of one month. Each Loan Notice submitted the next Business Day or U.S. Government Securities Business Day, as applicable, and such day shall be treated as the first Business Day or U.S. Government Securities Business Day, as applicable, of the required notice period.
(d) The initial Request for Borrowing shall include certification by a Responsible Officer of Administrative Borrower Party shall be deemed to be a representation and warranty that each of the applicable conditions specified in Section 6.02 Article III have been satisfied on and as or waived. Each Request for Borrowing delivered to Lender thereafter shall include a certificate by a Responsible Officer of Administrative Borrower that each of the date of the applicable Borrowing. No Loan may be converted into conditions set forth in Section 3.2 have been satisfied or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencywaived.
Appears in 1 contract
Sources: Credit Agreement (Silvercrest Asset Management Group Inc.)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, shall be made on a Business Day and each continuation LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan or Letter of Term SOFR Loans or Alternative Currency Term Rate Loans Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by facsimile, mail, electronic mail (in a format bearing a copy of the applicable Borrower Party’s irrevocable notice signature(s) required thereon), or personal service, and delivered to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3Agent and Issuing Bank as provided in Section 11.3.
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) for a LIBOR Rate Loan, Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by delivery the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to Administrative the rate then applicable to Base Rate Loans hereunder. If Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 (i) with respect to a Term SOFR Base Rate Loan or a LIBOR Rate Loan denominated in Dollars is received by Agent not later than 1:00 p.m. New York time or (ii) with respect to a LIBOR Rate Loan denominated in an Alternative Currency Term Rate Loanis received by Agent not later than 10:00 a.m. London time, it on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before 1:00 p.m. New York time (or 10:00 a.m. London time), of one month. Each Loan Notice submitted by a Borrower Party the next Business Day or Eurodollar Business Day, as applicable, and such day shall be deemed treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, (i) whether the applicable Loan or Letter of Credit will be used for the Loan Parties’ general working capital purposes or to fund an Investment in a Fund (and if the latter, the identity of the Fund(s) that the proceeds of such Loan will be used by Borrower to invest in and the amount of each such Investment, if applicable), (ii) after giving effect to such Loan or Letter of Credit, the outstanding amount of Loans and Letters of Credit that have been used to finance an Investment in each Fund (by such Fund), and the outstanding amount of all Loans and Letters of Credit that have been used for the Loan Parties’ general working capital purposes, (iii) with respect to any Fund as to which the proceeds of Loans are to be used to fund investments, the fair market value of the investments of the Loan Parties in such Fund, (iv) with respect to any Margin Securities held by any Loan Party, a representation and warranty that description of such Margin Securities as well as the applicable conditions specified in Section 6.02 have been satisfied on and fair market value thereof as of the date of such Request for Borrowing and (v) the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in amount of the original currency proceeds of such Loan and reborrowed that will be made available to each of Ares Holdings, Ares Domestic Holdings, Ares Investments, Ares Real Estate, or another entity comprising Borrower.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders not later than 2:00 p.m. Local Time, on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other currencysimilar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. Local Time on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Holdings or another entity comprising Borrower (other than Ares Domestic Holdings, Ares Investments or Ares Real Estate) in the applicable Request for Borrowing, (x) transferring to the Ares Domestic Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Domestic Holdings in the applicable Request for Borrowing, (y) transferring to the Ares Investments Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Investments in the applicable Request for Borrowing, and (z) transferring to the Ares Real Estate Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Real Estate in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Restatement Effective Date or, with respect to any Loan after the Restatement Effective Date, prior to 10:00 a.m. (New York time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.10(d), 2.6(f) or 8.2, then the Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Agent for the account of such Lender for the benefit of the Agent or the respective Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Agent in its discretion.
(h) All Advances shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
Appears in 1 contract
Sources: Amendment No. 6 (Ares Management Lp)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, Borrowing shall be made on a Business Day and each continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable, accompanied by a Borrowing Base Certificate, and each of the applicable foregoing shall be duly executed and personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email address as Agent may designate to Borrower Party’s irrevocable notice in accordance herewith), or telefacsimile to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3Agent at the address (or its email address or telefacsimile number) indicated on Exhibit 11.3 attached hereto, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Base Rate Borrowing, a conversion of a Loan Borrower shall give Agent notice not later than noon Pacific Time 1 Business Day prior to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Agent notice no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day the LIBOR Rate Borrowing is to be made, and such notice shall specify (among other things) that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be available as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the “Loan Date”); (C) the principal amount of Loans to will be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate LoansBorrowing, and any such automatic conversion to Base outstanding LIBOR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified be a LIBOR Rate Loan with an Interest Period of one month(1) month upon expiration of the applicable Interest Period.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Borrowing or a LIBOR Rate Borrowing is received by Agent not later than noon, Pacific Time, on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before noon, Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan) or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by email, telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan Notice available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have an obligation to make, any Loan if Agent shall have actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (ii) the requested Loan would exceed the Availability on such Funding Date.
(e) Each Request for Borrowing shall (i) specify, if applicable, among other information, the identity of the Excluded Fund(s) that the proceeds of such Borrowing will be used by Borrower to invest in and the amount of each such Investment and (ii) include a description of all Margin Securities (if any) held or to be acquired by any Loan Party in connection with such Borrowing (including the name of the issuer of such Margin Securities, the owner (or proposed owner) thereof and the number of shares of each class of Margin Securities held or to be acquired by such Person), and the market value thereof, together with a description of the other Collateral held by such Loan Party in each case with such detail as may be required to enable Lender to comply with its obligations under Regulation U, and any other related information reasonably requested by Lender, and, upon request of the Lender, Borrower will provide a Borrower-prepared financial report with respect to the Loan Parties (including a Borrower-prepared balance sheet with respect to the Loan Parties) as of the end of the most recent fiscal month then ended.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower Party against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to each other Non-Defaulting Lender ratably in accordance with their Revolving Credit Facility Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other Non-Defaulting Lender), (ii) second, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iii) third, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (i) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its reasonable discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolving Credit Facility Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the date matters governed by Section 11.2(a)(i) through (iii). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (x) the Non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (y) the Defaulting Lender makes its Pro Rata Share of the applicable BorrowingLoans and pays to Agent all amounts owing by Defaulting Lender in respect thereof and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. No The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Facility Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Revolving Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan may Document, it is the intention of the parties hereto that such provisions be converted into or continued read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal amount of the Loans, the portions thereof owing to each Lender, and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan denominated in (or other extension of credit) hereunder, nor shall any Revolving Credit Facility Commitment of any Lender be increased or decreased as a different currencyresult of any failure by any other Lender to perform its obligations hereunder, but instead must be prepaid in the original currency of such Loan and reborrowed in the (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other currencyLender from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made by a written Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), Term SOFR Loans, Alternative Currency Term Rate Loans or Daily and delivered to Agent at 4▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address A▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone 9▇▇-▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3
(a) must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower)FS CREIT. Each Borrowing Request shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be a Base Rate Loan, 10:00 a.m. (Pacific Time) on the requested Funding Date (or such lesser period as agreed to by Agent in its discretion), and such Request for Borrowing shall specify (among other things) that a Base Rate Loan Notice is requested and state the amount thereof; or
(whether telephonic ii) if such Borrowing is to be a LIBOR Rate Loan, 1:00 p.m. (Pacific Time) at least one (1) Eurodollar Business Day before the date the LIBOR Rate Loan is to be made, and such Request for Borrowing shall specify (among other things) that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or written) shall specify: (A) whether Event of Default has occurred and is continuing. If the Administrative Borrower Party is requesting a Borrowing, a conversion of fails to designate a Loan to another Type of Loanas a LIBOR Rate Loan in accordance herewith, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall Loan will be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) Base Rate Loan. In connection with respect to a Term SOFR Loan or Alternative Currency Term each LIBOR Rate Loan, the duration Borrowers shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of (a) the payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period with respect thereto. If applicable thereto (including as a Borrower Party fails to give a timely notice requesting a result of an Event of Default), (b) the conversion or continuation, then the applicable Loans shall be converted to Base of any LIBOR Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”), except if caused by a Lender failing to fund. Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan (excluding margin or spread) had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in effect the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.7(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.7 with respect to a Base Rate Loan or a LIBOR Rate Loan is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time), as applicable on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 10:00 a.m. or 1:00 p.m. (Pacific Time), as applicable, of the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, the intended use of the proceeds of such Loan or Letter of Credit and the amount to be applied to each such use.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to the Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Distribution Account; provided, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the Funding Date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to the Borrowers such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify the Borrowers of such failure to fund and, upon demand by Agent, the Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of the Borrowers against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) Notwithstanding the provisions of Section 2.4(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by any Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Issuing Lender, to the extent of the portion of a L/C Disbursement that was required to be, but was not, paid by the Defaulting Lender, (B) second, to each Non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of the Borrowers (upon the request of the Borrowers and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder and (D) from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (G) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate LoanDocuments (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), it will such Defaulting Lender shall be deemed not to have specified an Interest Period of one month. Each Loan Notice submitted by be a Borrower Party “Lender” and such Lender’s Revolver Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the matters governed by Section 12.2(a)(i) through (iii). The provisions of this Section 2.7(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the applicable BorrowingNon-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers shall have waived, in writing, the application of this Section 2.7(g) to such Defaulting Lender or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. No Loan The operation of this Section 2.7(g) shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Lender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment and Loans of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (including (1) all interest, fees, and other amounts that may be converted into due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or continued the Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.7(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.7(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for the Borrowers, shall maintain a register showing the principal amount of the Loans, owing to each Lender and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan denominated in (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a different currency, but instead must be prepaid in the original currency result of such Loan any failure by any other Lender to perform its obligations hereunder and reborrowed in the (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other currencyLender from its obligations hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan shall be made upon written notice, by way of a Request for Borrowing, each conversion of Base Rate Loanswhich Request for Borrowing shall be irrevocable and shall be given by telefacsimile, Term SOFR Loansmail, Alternative Currency Term Rate Loans email or Daily personal service, and delivered to Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3, as follows:
(i) for a Base Rate Loan, Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is one (1) Business Day prior to the requested Funding Date, and such Request for Borrowing shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Loan, Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is two (2) Eurodollar Business Days before the requested Funding Date, and such Request for Borrowing shall specify that a LIBOR Rate Loan is requested and state the amount and the initial Interest Period applicable thereto (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Event of Default has occurred and is continuing. If Administrative Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan, provided that Administrative Borrower may at any time thereafter convert such Base Rate Loan into a LIBOR Rate Loan in accordance with the terms of this Agreement. In connection with each LIBOR Rate Loan, each Borrower shall indemnify, defend, and hold Lender harmless against any loss, cost, or expense incurred by Lender as a result of (a) must be confirmed promptly by delivery to Administrative Agent the prepayment of a written any LIBOR Rate Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which on any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of day other than the last day of the Interest Period then applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR Rate Loan on any day other than the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or notice of prepayment, as applicable, delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Lender, be deemed to equal the amount determined by Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Lender delivered to Administrative Borrower setting forth any amount or amounts that Lender is entitled to receive pursuant to this Section 2.7(b) (which certificate shall include Lender’s calculations of such amount or amounts) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.7 with respect to a Term SOFR Base Rate Loan or Alternative Currency Term a LIBOR Rate LoanLoan is received by Lender not later than noon Pacific time, it on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before noon Pacific time, of one month. Each Loan Notice submitted the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) The initial Request for Borrowing shall include certification by a Responsible Officer of Administrative Borrower Party shall be deemed to be a representation and warranty that each of the applicable conditions specified in Section 6.02 Article III have been satisfied on and as or waived. Each Request for Borrowing delivered to Lender thereafter shall include a certificate by a Responsible Officer of Administrative Borrower that each of the date of the applicable Borrowing. No Loan may be converted into conditions set forth in Section 3.2 have been satisfied or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencywaived.
Appears in 1 contract
Sources: Credit Agreement (Silvercrest Asset Management Group Inc.)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, shall be made on a Business Day and each continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans Loan shall be made on a Eurodollar Business Day.
(b) Each Loan that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by facsimile, mail, electronic mail (in a format bearing a copy of the applicable Borrower Party’s irrevocable notice signature(s) required thereon), or personal service, and delivered to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3the Agent as provided in Section 11.3; provided that no Request for Borrowing shall be submitted to the Agent (i) for a LIBOR Rate Loan, before the first Eurodollar Business Day following the Closing Date and (ii) for a Base Rate Loan, before the Closing Date.
(ai) must for a Base Rate Loan, the Borrower shall give the Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date.
(ii) for a LIBOR Rate Loan, the Borrower shall give the Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly made; provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. At any time that an Event of Default has occurred and is continuing, the Agent may convert, and shall convert if so requested by delivery the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to Administrative the rate then applicable to Base Rate Loans hereunder. If the Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR Rate Loan, the Borrower shall indemnify, defend, and hold the Agent and the Lenders harmless against any loss, cost, or expense incurred by the Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to the Agent or any Lender, be deemed to equal the amount determined by the Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loansthereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which the Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of the Agent or a Lender delivered to the Borrower setting forth any amount or amounts that the Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) With respect to a Base Rate Loan, if the notice provided for in clause (b)(i) of this Section 2.6 is received by the Agent not later than 2:00 p.m. New York time on a Business Day, such day shall be treated as the first Business Day of the required notice period. If such notice is received by the Agent after 2:00 p.m. New York time on a Borrower Party fails Business Day or at any time on a day that is not a Business Day, such notice shall be deemed received by the Agent on the next following Business Day prior to specify an 2:00 p.m. on such day and such day shall be treated as the first Business Day of the required notice period. With respect to a LIBOR Rate Loan, if the notice provided for in clause (b)(ii) of this Section 2.6 is received by the Agent not later than 2:00 p.m. New York time on a Eurodollar Business Day, such day shall be treated as the first Eurodollar Business Day of the required notice period. If such notice is received by the Agent after 2:00 p.m. New York time on a Eurodollar Business Day or at any time on a day that is not a Eurodollar Business Day,, such notice shall be deemed received by the Agent on the next following Eurodollar Business Day prior to 2:00 p.m. New York time on such day, and such day shall be treated as the first Eurodollar Business Day of the required notice period.
(d) Each Request for Borrowing shall specify: (i) the aggregate amount of the requested Loan; (ii) the date of the borrowing of such Loan; (iii) whether such Loan is to be a Base Rate Loan or a LIBOR Rate Loan; and (iv) in the case of a LIBOR Rate Loan, the initial Interest Period with respect thereto.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), the Agent shall notify the Lenders not later than 3:00 p.m. New York time, on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Term SOFR Loan or Alternative Currency Term Base Rate Loan), it will be deemed to have specified an Interest Period or the third Eurodollar Business Day preceding the Funding Date (in the case of one montha LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan Notice submitted available to the Agent in immediately available funds, to the Agent’s Account, not later than 2:00 p.m. New York time on the Funding Date applicable thereto. After the Agent’s receipt of the proceeds of such Loans, the Agent shall make the proceeds thereof available to the Borrower on the applicable Funding Date by a transferring to the Borrower Party Designated Account immediately available funds equal to the proceeds that are requested by the Borrower in the applicable Request for Borrowing; provided, however, that the Agent shall be deemed not request any Lender to be a representation make, and warranty no Lender shall have the obligation to make, any Loan if the Agent shall have actual knowledge that (1) one or more of the applicable conditions specified precedent set forth in Section 6.02 have been 3 will not be satisfied on and as of the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless the Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 10:00 a.m. (New York time) on the date of such Loan, that such Lender will not make available as and when required hereunder to the applicable BorrowingAgent for the account of the Borrower the amount of that Lender’s Pro Rata Share of the Loan, the Agent may assume that each Lender has made or will make such amount available to the Agent in immediately available funds on the Funding Date and the Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. No If and to the extent any Lender shall not have made its full amount available to the Agent in immediately available funds and the Agent in such circumstances has made available to the Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to the Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by the Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to the Agent shall constitute such Lender’s Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in on the original currency date of such Loan for all purposes of this Agreement. If such amount is not made available to the Agent on the Business Day following the Funding Date, the Agent will notify the Borrower of such failure to fund and, upon demand by the Agent, the Borrower shall pay such amount to the Agent for the Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Loan, without in any way prejudicing the rights and reborrowed remedies of the Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.6(f) or 8.2, then the Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Agent for the account of such Lender for the benefit of the Agent to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Agent in its discretion.
(h) All Advances shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other currencyLender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (Fifth Street Asset Management Inc.)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each SOFR Loan shall be made on a Business Day.
(b) Each Loan or Letter of Credit that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇ v.54890-8208-0090 v.3▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, as follows:
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) on and after November 12, 2021, the Borrower shall no longer be confirmed promptly entitled to request additional LIBOR Rate Loans, continue existing LIBOR Rate Loans, and the Lender Group shall be under no obligation to make or continue LIBOR Rate Loans. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by delivery to Administrative Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”; provided, that, for the avoidance of doubt, Funding Losses shall not include any losses incurred under Section 2.6(f) or with respect to the applicable Loanswhich ▇▇▇▇▇▇▇▇ is required to reimburse Agent or any Lender under any other section of this Agreement). If a Borrower Party fails to specify an Interest Period Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount reasonably determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to offer, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(iii) for a SOFR Loan, Borrower shall give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such notice shall specify that a SOFR Loan is requested and state the amount and, in the case of a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an the Interest Period thereof (subject to the provisions of one monththis Article II). Each Loan Notice submitted by a Borrower Party Request for Borrowing shall be deemed to be a representation request for a SOFR Loan unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and warranty is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstanding SOFR Loans to the rate then applicable to Base Rate Loans hereunder.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Loan or a SOFR Loan is received by Agent not later than 10 a.m. (Pacific Time), on a Business Day such day shall be treated as the first Business Day of the required notice period. In any other event, such notice will be treated as having been received immediately before 10 a.m. (Pacific Time), of the next Business Day and such day shall be treated as the first Business Day of the required notice period.
(d) Borrower shall give Agent written notice of the commencement of any period the Minimum Investment Condition is not satisfied by telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon), or personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, at least three (3) Business Days prior to the date the Minimum Investment Condition is not satisfied.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific Time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Business Day preceding the Funding Date (in the case of a SOFR Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such ▇▇▇▇▇▇’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by ▇▇▇▇▇▇▇▇ to be sent to Borrower in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions specified precedent set forth in Section 6.02 have been Article III will not be satisfied on and as of the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender, prior to 9:00 a.m. (Pacific Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the applicable Borrowingaccount of Borrower the amount of that ▇▇▇▇▇▇’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. No If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in on the original currency date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and reborrowed remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Notwithstanding the provisions of Section 2.3(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to Issuing Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (ii) second, to each other currencynon-Defaulting Lender ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other non-Defaulting Lender), (iii) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iv) fourth, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (H) of Section 2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such ▇▇▇▇▇▇’s Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this Section 2.6(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.6(g)(ii) shall be released to Borrower). The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Lender or to the Lenders other than such Defaulting Lender. Any failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute ▇▇▇▇▇▇, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute ▇▇▇▇▇▇ (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund, including ▇▇▇▇▇▇▇▇’s right to require Defaulting Lender to reimburse Borrower for any fees, charges or expenses incurred by Borrower under this Section 2.3(g) as a result of the failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
Appears in 1 contract
Sources: Credit Agreement (Ares Commercial Real Estate Corp)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each SOFR Loan shall be made on a Business Day.
(b) Each Loan or Letter of Credit that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇ v.54890-8208-0090 v.3▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, as follows:
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) on and after November 12, 2021, the Borrower shall no longer be confirmed promptly entitled to request additional LIBOR Rate Loans, continue existing LIBOR Rate Loans, and the Lender Group shall be under no obligation to make or continue LIBOR Rate Loans. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by delivery to Administrative Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”; provided, that, for the avoidance of doubt, Funding Losses shall not include any losses incurred under Section 2.6(f) or with respect to the applicable Loanswhich ▇▇▇▇▇▇▇▇ is required to reimburse Agent or any Lender under any other section of this Agreement). If a Borrower Party fails to specify an Interest Period Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount reasonably determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to offer, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(iii) for a SOFR Loan, Borrower shall give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such notice shall specify that a SOFR Loan is requested and state the amount and, in the case of a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an the Interest Period thereof (subject to the provisions of one monththis Article II). Each Loan Notice submitted by a Borrower Party Request for Borrowing shall be deemed to be a representation request for a SOFR Loan unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and warranty is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstanding SOFR Loans to the rate then applicable to Base Rate Loans hereunder.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Loan or a SOFR Loan is received by Agent not later than 10 a.m. (Pacific Time), on a Business Day such day shall be treated as the first Business Day of the required notice period. In any other event, such notice will be treated as having been received immediately before 10 a.m. (Pacific Time), of the next Business Day and such day shall be treated as the first Business Day of the required notice period.
(d) Borrower shall give Agent written notice of the commencement of any period the Minimum Investment Condition is not satisfied by telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon), or personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, at least three (3) Business Days prior to the date the Minimum Investment Condition is not satisfied.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific Time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Business Day preceding the Funding Date (in the case of a SOFR Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such ▇▇▇▇▇▇’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by ▇▇▇▇▇▇▇▇ to be sent to Borrower in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions specified precedent set forth in Section 6.02 have been Article III will not be satisfied on and as of the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender, prior to 9:00 a.m. (Pacific Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the applicable Borrowingaccount of Borrower the amount of that ▇▇▇▇▇▇’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. No If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in on the original currency date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and reborrowed remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Notwithstanding the provisions of Section 2.3(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to Issuing Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (ii) second, to each other currency.non-Defaulting Lender ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other non-Defaulting Lender), (iii) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iv) fourth, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (H) of Section 2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such ▇▇▇▇▇▇’s Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, Agent, Issuing
Appears in 1 contract
Sources: Credit Agreement (Ares Commercial Real Estate Corp)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made by a written Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), Term SOFR Loans, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3
(a) must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower)FS CREIT. Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which Request for Borrowing shall be a Business Day, made not later than the “Loan Date”); time specified below on or before the date described below:
(Ci) the principal amount of Loans if such Borrowing is to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Base Rate Loan, 10:00 a.m. (Pacific Time) on the duration of requested Funding Date (or such lesser period as agreed to by Agent in its discretion), and such Request for Borrowing shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; or
(ii) if such Borrowing is to be a LIBOR RateSOFR Loan, 1:00 p.m. (Pacific Time) at least one (1) Eurodollar Business Day before the date the LIBOR RateSOFR Loan is to be made, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR Loan is requested and state the amount and Interest Period with respect theretothereof (subject to the provisions of this Article II); provided, that no Loan shall be available as a LIBOR RateSOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If a the Administrative Borrower Party fails to give designate a timely notice requesting Loan as a conversion or continuationLIBOR RateSOFR Loan in accordance herewith, then the applicable Loans shall Loan will be converted to a Base Rate LoansLoan. In connection with each LIBOR RateSOFR Loan, the Borrowers shall indemnify, defend, and hold Agent and the Lenders harmless against any such automatic loss, cost, or expense incurred by Agent or any Lender as a result of (a) the payment of any principal of any LIBOR RateSOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion to Base Rate Loans shall be effective as of any LIBOR RateSOFR Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Loan on the date specified in any LIBOR NoticeRequest for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees, but excluding any margin or spread, collectively, “Funding Losses”), except if caused by a Lender failing to fund. Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined byA certificate of Agent or sucha Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan (excluding margin or spread) had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in effect the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.7(b)(ii) shall be conclusive absent manifest error. The Borrowers shall pay such Lender the amount shown as due on any such certificate within ten (10) days after receipt thereof.
(c) If the notice provided for in clause (b) of this Section 2.7 with respect to a Base Rate Loan or a LIBOR RateSOFR Loan is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time), as applicable on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 10:00 a.m. or 1:00 p.m. (Pacific Time), as applicable, of the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, the intended use of the proceeds of such Loan or Letter of Credit and the amount to be applied to each such use.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to the Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Distribution Account; provided, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the Funding Date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to the Borrowers such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify the Borrowers of such failure to fund and, upon demand by Agent, the Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of the Borrowers against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) Notwithstanding the provisions of Section 2.4(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by any Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Issuing Lender, to the extent of the portion of a L/C Disbursement that was required to be, but was not, paid by the Defaulting Lender, (B) second, to each Non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of the Borrowers (upon the request of the Borrowers and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder and (D) from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (G) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate LoanDocuments (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), it will such Defaulting Lender shall be deemed not to have specified an Interest Period of one month. Each Loan Notice submitted by be a Borrower Party “Lender” and such Lender’s Revolver Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the matters governed by Section 12.2(a)(i) through (iii). The provisions of this Section 2.7(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the applicable BorrowingNon-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers shall have waived, in writing, the application of this Section 2.7(g) to such Defaulting Lender or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. No Loan The operation of this Section 2.7(g) shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Lender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment and Loans of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (including (1) all interest, fees, and other amounts that may be converted into due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or continued the Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.7(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.7(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for the Borrowers, shall maintain a register showing the principal amount of the Loans, owing to each Lender and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan denominated in (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a different currency, but instead must be prepaid in the original currency result of such Loan any failure by any other Lender to perform its obligations hereunder and reborrowed in the (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other currencyLender from its obligations hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.)
Request for Borrowing. (a) Each Loan shall be made on a Business Day.
(b) Each Borrowing shall be made by a written Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable, given by an Authorized Person by telefacsimile, mail, e-mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail addresses ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇ v.54890-8208-0090 v.3and ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇. Such Request for Borrowing shall (i) confirm that the proceeds of such Borrowing will be used for purposes permitted hereunder and (ii) confirm the aggregate amount of the Remaining Commitments that are Closing Date Capital Commitments and Approved New Investor Commitments and provide a calculation of the Borrowing Base. Each Request for Borrowing shall be made not later than 9:00 a.m. (Pacific time) on or before the date described below:
(ai) must be confirmed promptly by delivery to Administrative Agent in the case of a written request for a Swing Loan, on the Business Day that is the requested Funding Date,
(ii) in the case of all other requests:
(1) if such Borrowing is to be a Base Rate Loan, on the Business Day that is the requested Funding Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan Noticeis requested and state the amount thereof; or
(2) if such Borrowing is to be a SOFR Loan, appropriately completed at least one Business Day (or such lesser period as agreed to by all Lenders in their discretion) prior to the date that is the requested Funding Date, and signed such Request for Borrowing shall specify (among other things) that a SOFR Loan is requested and state the amount and, if applicable, Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan shall be available as a SOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each SOFR Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a Responsible Officer result of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any SOFR Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any SOFR Loan on the date specified in effect with respect any notice delivered pursuant hereto (such losses, costs, and expenses, including any loss, cost or expense arising from the liquidation or redeployment of funds or from any fees, collectively, “Funding Losses”). A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within 10 days after receipt thereof.
(c) If the notice provided for in clause (b) of this Section 2.6 is received by Agent not later than 9:00 a.m. (Pacific time) on a Business Day, such day shall be treated as the first Business Day of the required notice period. In any other event, such notice will be treated as having been received immediately before 9:00 a.m. (Pacific time) of the next Business Day, and such day shall be treated as the first Business Day of the required notice period.
(d) [Intentionally Omitted].
(e) In the case of a Request for Borrowing of a Swing Loan and so long as the aggregate amount of Swing Loans outstanding, after taking into account the requested Swing Loan does not exceed $0, or Swing Lender, in its sole discretion, agrees to make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make a Revolving Loan (any such Loan made by Swing Lender pursuant to this Section 2.6(e) being referred to as a “Swing Loan” and all such Revolving Loans being referred to as “Swing Loans”) available to Borrower on the Funding Date applicable thereto by transferring immediately available funds in the amount of such requested Swing Loan to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an Interest Period of one monthDesignated Account. Each Swing Loan Notice submitted by a Borrower Party shall be deemed to be a representation Loan hereunder and warranty shall be subject to all the terms and conditions (including Article III) applicable to other Loans, except that all payments (including interest) on any Swing Loan shall be payable to Swing Lender solely for its own account. Swing Lender shall not make and shall not be obligated to make any Swing Loan if Swing Lender has actual knowledge that (i) one or more of the applicable conditions specified precedent set forth in Section 6.02 have been 3.2 will not be satisfied on the requested Funding Date for the applicable Swing Loan unless such condition has been waived in accordance with Section 11.2, or (ii) the requested Loan would exceed the amount that Borrower is entitled to borrow as Loans hereunder (after giving effect to all then outstanding Obligations and as all sublimits then applicable hereunder) on such Funding Date. The Swing Loans shall be secured by Agent’s Liens, constitute Loans and Obligations, and bear interest at the rate applicable from time to time to Revolving Loans that are Base Rate Loans. For the avoidance of doubt, the Swing Loan sublimit hereunder shall be deemed zero for all purposes of this Agreement and the other Loan Documents.
(f) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 10:00 a.m. (Pacific time) on the Business Day that is the Funding Date applicable thereto (in the case of a Base Rate Loan) or the Business Day immediately preceding the Funding Date (in the case of a SOFR Loan), by telecopy, telephone, or other similar form of transmission, of the date requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific time) on the Funding Date applicable thereto (in the case of a SOFR Loan) and noon (Pacific time) on the Funding Date applicable thereto (in the case of a Base Rate Loan). After Agent’s receipt of the proceeds of such Loans from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have an obligation to make, any Loan if Agent shall have actual knowledge that (i) one or more of the applicable Borrowingconditions precedent set forth in Section 3.2 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived in accordance with Section 11.2, or (ii) the requested Loan would exceed the amount that Borrower is entitled to borrow as Loans hereunder (after giving effect to all then outstanding Obligations) on such Funding Date.
(g) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 10:00 a.m. (Pacific time) on the Funding Date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. No If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall, on the Business Day following such Funding Date, make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in on the original currency Funding Date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the Funding Date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and reborrowed remedies of Borrower against the Defaulting Lender; provided, that to the extent that Borrower does not have the funds available on such date to fully repay such amount (together with interest as specified above) and if on or before the Business Day following the date Agent notified Borrower of such failure to fund, the Borrower shall issue a Capital Call Notice to the Investors for Capital Contributions in accordance with the terms of the Subscription Agreements in an amount (together with Borrower’s available funds) sufficient to repay such amount (together with interest as specified above). Borrower may repay such amount (together with interest as specified above) within twelve (12) Business Days following the date Agent notified Borrower of such failure to fund. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other currencyLender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
Appears in 1 contract
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day, and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made by a written Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable, given by an Authorized Person by telefacsimile, mail, e-mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇ v.54890-8208-0090 v.3▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇. Such Request for Borrowing shall (i) confirm that the proceeds of such Borrowing will be used for purposes permitted hereunder, (ii) indicate whether such Borrowing is under the Treasury Facility or the Subscription Facility, (iii) in the case of any Borrowing under the Treasury Facility, demonstrate compliance with Section 2.8(d) and (iv) in the case of any Borrowing under the Subscription Facility, confirm the aggregate amount of the Remaining Commitments that are Closing Date Capital Commitments and Approved New Investor Commitments and provide a calculation of the Borrowing Base. Each Request for Borrowing shall be made not later than 9:00 a.m. (Pacific time) on or before the date described below:
(ai) must be confirmed promptly by delivery to Administrative Agent in the case of a written request for a Swing Loan, on the Business Day that is the requested Funding Date,
(ii) in the case of all other requests:
(1) if such Borrowing is to be a Base Rate Loan, on the Business Day that is the requested Funding Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan Noticeis requested and state the amount thereof; or
(2) if such Borrowing is to be a LIBOR Rate Loan, appropriately completed at least three Eurodollar Business Days (or such lesser period as agreed to by all Lenders in their discretion) prior to the date that is the requested Funding Date, and signed such Request for Borrowing shall specify (among other things) that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a Responsible Officer result of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Term SOFR Loan or Alternative Currency Term Base Rate Loan, it a LIBOR Rate Loan is received by Agent not later than 9:00 a.m. (Pacific time) on a Business Day, such day shall be treated as the first Business Day of the required notice period. In any other event, such notice will be deemed treated as having been received immediately before 9:00 a.m. (Pacific time) of the next Business Day, and such day shall be treated as the first Business Day of the required notice period.
(d) [Intentionally Omitted].
(e) In the case of a Request for Borrowing of a Swing Loan and so long as the aggregate amount of Swing Loans outstanding, after taking into account the requested Swing Loan does not exceed $0, or Swing Lender, in its sole discretion, agrees to have specified an Interest Period make a Swing Loan notwithstanding the foregoing limitation, Swing Lender shall make a Revolving Loan (any such Loan made by Swing Lender pursuant to this Section 2.6(e) being referred to as a “Swing Loan” and all such Revolving Loans being referred to as “Swing Loans”) available to Borrower on the Funding Date applicable thereto by transferring immediately available funds in the amount of one monthsuch requested Swing Loan to the Designated Account. Each Swing Loan Notice submitted by a Borrower Party shall be deemed to be a representation Loan hereunder and warranty shall be subject to all the terms and conditions (including Article III) applicable to other Loans, except that all payments (including interest) on any Swing Loan shall be payable to Swing Lender solely for its own account. Swing Lender shall not make and shall not be obligated to make any Swing Loan if Swing Lender has actual knowledge that (i) one or more of the applicable conditions specified precedent set forth in Section 6.02 have been 3.2 will not be satisfied on the requested Funding Date for the applicable Swing Loan unless such condition has been waived in accordance with Section 11.2, or (ii) the requested Loan would exceed the amount that Borrower is entitled to borrow as Loans hereunder (after giving effect to all then outstanding Obligations and as all sublimits then applicable hereunder) on such Funding Date. The Swing Loans shall be secured by Agent’s Liens, constitute Loans and Obligations, and bear interest at the rate applicable from time to time to Revolving Loans that are Base Rate Loans. For the avoidance of doubt, the Swing Loan sublimit hereunder shall be deemed zero for all purposes of this Agreement and the other Loan Documents.
(f) In the event that Swing Lender is not obligated to make a Swing Loan, then promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 10:00 a.m. (Pacific time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan) or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, telephone, or other similar form of transmission, of the date requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have an obligation to make, any Loan if Agent shall have actual knowledge that (i) one or more of the applicable Borrowingconditions precedent set forth in Section 3.2 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived in accordance with Section 11.2, or (ii) the requested Loan would exceed the amount that Borrower is entitled to borrow as Loans hereunder (after giving effect to all then outstanding Obligations) on such Funding Date.
(g) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 10:00 a.m. (Pacific time) on the Funding Date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. No If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall, on the Business Day following such Funding Date, make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in on the original currency Funding Date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the Funding Date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and reborrowed remedies of Borrower against the Defaulting Lender; provided, that to the extent that Borrower does not have the funds available on such date to fully repay such amount (together with interest as specified above) and if on or before the Business Day following the date Agent notified Borrower of such failure to fund, the Borrower shall issue a Capital Call Notice to the Investors for Capital Contributions in accordance with the terms of the Subscription Agreements in an amount (together with Borrower’s available funds) sufficient to repay such amount (together with interest as specified above). Borrower may repay such amount (together with interest as specified above) within twelve (12) Business Days following the date Agent notified Borrower of such failure to fund. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other currencyLender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
Appears in 1 contract
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan or Letter of Credit that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇ v.54890-8208-0090 v.3▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, as follows:
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) for a LIBOR Rate Loan, Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly by delivery made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to Administrative Agent the provisions of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrowerthis Article II). Each Request for Borrowing shall be deemed to be a request for a LIBOR Rate Loan Notice (whether telephonic unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate Loans hereunder. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or written) shall specify: expense incurred by Agent or any Lender as a result of (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”; provided, that, for the avoidance of doubt, Funding Losses shall not include any losses incurred under Section 2.6(f) or with respect to which Borrower is required to reimburse Agent or any Lender under any other section of this Agreement). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount reasonably determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in effect the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to offer, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Loan or a LIBOR Rate Loan is received by Agent not later than 10 a.m. (Pacific Time), on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 10 a.m. (Pacific Time), of the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) [Intentionally omitted].
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific Time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Borrower in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender, prior to 9:00 a.m. (Pacific Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Notwithstanding the provisions of Section 2.3(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to Issuing Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (ii) second, to each other non-Defaulting Lender ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other non-Defaulting Lender), (iii) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iv) fourth, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (H) of Section 2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate LoanDocuments (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), it will such Defaulting Lender shall be deemed not to have specified an Interest Period of one month. Each Loan Notice submitted by be a Borrower Party “Lender” and such Lender’s Revolver Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the applicable Borrowingnon-Defaulting Lenders, Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this Section 2.6(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.6(g)(ii) shall be released to Borrower). No Loan The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Lender or to the Lenders other than such Defaulting Lender. Any failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including (1) all interest, fees, and other amounts that may be converted into due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or continued Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund, including Borrower’s right to require Defaulting Lender to reimburse Borrower for any fees, charges or expenses incurred by Borrower under this Section 2.3(g) as a result of the failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan denominated Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in a different currencyconcert with each other. In the event of any actual, but instead must irreconcilable conflict that cannot be prepaid in resolved as aforesaid, the original currency terms and provisions of such Loan this Section 2.6(g) shall control and reborrowed in the other currencygovern.
Appears in 1 contract
Sources: Credit Agreement (Ares Commercial Real Estate Corp)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made by a written Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), Term SOFR Loans, Alternative Currency Term Rate Loans or Daily and delivered to Agent at 4▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address A▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone 9▇▇-▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3
(a) must be confirmed promptly by delivery to Administrative Agent of a written Loan Notice, appropriately completed and signed such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower)FS CREIT. Each Request for Borrowing Request shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be a Base Rate Loan, 10:00 a.m. (Pacific Time) on the requested Funding Date (or such lesser period as agreed to by Agent in its discretion), and such Request for Borrowing shall specify (among other things) that a Base Rate Loan Notice is requested and state the amount thereof; or
(whether telephonic ii) if such Borrowing is to be a LIBOR Rate Loan, 1:00 p.m. (Pacific Time) at least one (1) Eurodollar Business Day before the date the LIBOR Rate Loan is to be made, and such Request for Borrowing shall specify (among other things) that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or written) shall specify: (A) whether Event of Default has occurred and is continuing. If the Administrative Borrower Party is requesting a Borrowing, a conversion of fails to designate a Loan to another Type of Loanas a LIBOR Rate Loan in accordance herewith, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall Loan will be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) Base Rate Loan. In connection with respect to a Term SOFR Loan or Alternative Currency Term each LIBOR Rate Loan, the duration Borrowers shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of (a) the payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period with respect thereto. If applicable thereto (including as a Borrower Party fails to give a timely notice requesting a result of an Event of Default), (b) the conversion or continuation, then the applicable Loans shall be converted to Base of any LIBOR Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of Loan other than on the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in any LIBOR Notice delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”), except if caused by a Lender failing to fund. Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan (excluding margin or spread) had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in effect the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.7(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.7 with respect to a Base Rate Loan or a LIBOR Rate Loan is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time), as applicable on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 10:00 a.m. or 1:00 p.m. (Pacific Time), as applicable, of the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, the intended use of the proceeds of such Loan or Letter of Credit and the amount to be applied to each such use.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 101:00 ap.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to the Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Distribution Account; provided, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the Funding Date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrowers on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to the Borrowers such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify the Borrowers of such failure to fund and, upon demand by Agent, the Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of the Borrowers against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) Notwithstanding the provisions of Section 2.4(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by any Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to Issuing Lender, to the extent of the portion of a L/C Disbursement that was required to be, but was not, paid by the Defaulting Lender, (B) second, to each Non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (C) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of the Borrowers (upon the request of the Borrowers and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder and (D) from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (G) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate LoanDocuments (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), it will such Defaulting Lender shall be deemed not to have specified an Interest Period of one month. Each Loan Notice submitted by be a Borrower Party “Lender” and such Lender’s Revolver Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the matters governed by Section 12.2(a)(i) through (iii). The provisions of this Section 2.7(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the applicable BorrowingNon-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers shall have waived, in writing, the application of this Section 2.7(g) to such Defaulting Lender or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. No Loan The operation of this Section 2.7(g) shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Lender, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle the Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment and Loans of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (including (1) all interest, fees, and other amounts that may be converted into due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or continued the Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.7(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.7(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for the Borrowers, shall maintain a register showing the principal amount of the Loans, owing to each Lender and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan denominated in (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a different currency, but instead must be prepaid in the original currency result of such Loan any failure by any other Lender to perform its obligations hereunder and reborrowed in the (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other currencyLender from its obligations hereunder.
Appears in 1 contract
Sources: Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.)
Request for Borrowing. Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3
(a) must To request that the Lenders make the Loans to the Borrower on the Borrowing Date, the Borrower shall notify the Administrative Agent of such request by telephone not later than 10:30 a.m., New York City Time, on Wednesday, November 25, 2009. Such telephonic Borrowing Request shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Loan NoticeBorrowing Request in the form attached hereto as Exhibit H, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Financial Officer of the applicable Borrower). Each Loan Notice such telephonic and written Borrowing Request shall specify the following information:
(whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (Bi) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the aggregate principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowedmade (which amount shall not be less than $5,000,000 and shall not exceed the aggregate amount of the Commitments at such time);
(ii) that such Loans are to be made available by the Lenders on the Borrowing Date; and
(iii) the location and number of the account to which funds are to be disbursed, which shall be an account of the Convertible Senior Notes Paying Agent into which Holdings is required to deposit funds for the repayment of the Convertible Senior Notes on the stated maturity date thereof. In addition, each such written Borrowing Request shall contain (x) a certification by the Borrower confirming compliance with the condition set forth in paragraph (a) of Section 4.02 as of the Borrowing Date and (Gy) a certification by the Borrower that the proceeds of the Loans will be used only for the purpose described in Section 5.08. Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan to be made as part of the requested borrowing.
(b) Concurrently with submitting a Borrowing Request to the Administrative Agent in accordance with paragraph (a) of this Section 2.03, the Borrower shall deliver to the Administrative Agent a certificate signed by a Financial Officer of the Borrower as to the legal designation of the transfer of the proceeds of the Loans requested in such Borrowing Request from the Borrower to Holdings for use in funding the repayment of the Convertible Senior Notes by Holdings, including a description in reasonable detail of any Investment, dividend or other distribution by the Borrower to Holdings to fund such repayment in compliance with this Agreement and other agreements governing Material Indebtedness of the Borrower and Holdings, together with copies of documentation evidencing such designation; it being understood and agreed that neither the Administrative Agent nor any Lender shall have approval rights with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion designation or documentation, or be entitled to Base Rate object to such designation or documentation or to refuse to fund its Loans shall be effective as on the basis of the last day of the Interest Period then in effect disagreeing with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan such designation or Alternative Currency Term Rate Loan, it will be deemed to have specified an Interest Period of one month. Each Loan Notice submitted by a Borrower Party shall be deemed to be a representation and warranty that the applicable conditions specified in Section 6.02 have been satisfied on and as of the date of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencydocumentation.
Appears in 1 contract
Sources: Credit Agreement (Xm Investment LLC)
Request for Borrowing. (a) Each Borrowing, each conversion Loan shall be made on a Business Day.
(b) Each Loan or Letter of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan Credit that is proposed to another, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans be made after the Restatement Effective Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by facsimile, mail, electronic mail (in a format bearing a copy of the applicable Borrower Party’s irrevocable notice signature(s) required thereon), or personal service, and delivered to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3the Agent and Issuing Lender as provided in Section 11.3.
(ai) must For a Base Rate Loan, the Borrower shall give the Agent notice not later than 12:00 noon New York City time on the Business Day that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) For a Term SOFR Loan, the Borrower shall give the Agent notice not later than 12:00 noon New York City time three (3) Business Days before the date the Term SOFR Loan is to be confirmed promptly made, and such notice shall specify that a Term SOFR Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a Term SOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. At any time that an Event of Default has occurred and is continuing, the Agent may convert, and shall convert if so requested by delivery the Required Lenders, the interest rate on all outstanding Term SOFR Loans to Administrative the rate then applicable to Base Rate Loans hereunder. If the Borrower fails to designate a Loan as a Term SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan.
(iii) In connection with each Term SOFR Loan, the Borrower shall indemnify, defend, and hold the Agent and the Lenders harmless against any loss, cost, or expense incurred by the Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any such Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowing, a conversion result of a Loan to another Type an Event of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate LoansDefault); provided that (B) the requested date conversion of any such Loan other than on the last day of the BorrowingInterest Period applicable thereto, conversion or continuation(C) the failure to borrow, convert, continue or prepay any such Loan on the date specified in any Request for Borrowing or Request for Conversion/Continuation, as applicable, delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). The amount of such Funding Losses shall be determined, in the case may applicable Lender’s sole discretion, based upon the assumption that such Lender funded its ratable portion of the Term SOFR Loans and using any reasonable attribution or averaging methods which such Lender deems appropriate and practical. A certificate of the Agent or a Lender delivered to the Borrower setting forth any amount or amounts that the Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(iii) shall be conclusive absent manifest error.
(c) [Reserved].
(d) Each Request for Borrowing shall specify, among other information, (i) the Class of any such Loan, (ii) the date such Loan or Letter of Credit will be made or issued, which shall be a Business Day, the “(iii) whether any such Loan Date”); will be a Base Rate Loan or a Term SOFR Loan, (Civ) the principal aggregate amount of Loans such Loan or Letter of Credit and (v) in the case of a Term SOFR Loan, the initial Interest Period to be borrowedapplicable thereto, converted which shall be a period contemplated by the definition of the term “Interest Period.” There shall not at any time be more than a total of twenty (20) Term SOFR Tranches outstanding, in the aggregate.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), the Agent shall notify the applicable Lenders not later than 2:00 p.m. New York City time, on the Funding Date applicable thereto (in the case of a Base Rate Loan) or continued; the third Business Day preceding the Funding Date (Din the case of a Term SOFR Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon) or other similar form of transmission, of the Type requested Loan. Each such Lender shall make the amount of Loans such L▇▇▇▇▇’s Pro Rata Share of the requested Loan available to which any existing Loans are the Agent in immediately available funds, to be converted; (E) to which account the Agent’s Account, not later than 3:00 p.m. New York City time on the Funding Date applicable thereto. After the Agent’s receipt of the proceeds of such Loans, the Agent shall make the proceeds thereof available to the Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by the Borrower in the applicable Request for Borrowing; provided, conversion however, that the Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if the Agent shall have actual knowledge that (1) subject to Section 1.7, one or continuation should be directed; (F) the currency more of the Loans applicable conditions precedent set forth in Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) a requested Revolving Loan or Letter of Credit would exceed the Revolving Availability on such Funding Date.
(f) Unless the Agent receives notice from a Lender on or prior to be borrowed; and (G) the Restatement Effective Date or, with respect to a Term SOFR any Loan or Alternative Currency Term Rate after the Restatement Effective Date, prior to 10:00 a.m. New York City time on the date of such Loan, that such Lender will not make available as and when required hereunder to the Agent for the account of the Borrower the amount of that L▇▇▇▇▇’s Pro Rata Share of the Loan, the duration Agent may assume that each Lender has made or will make such amount available to the Agent in immediately available funds on the Funding Date and the Agent may (but shall not be so required), in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent any Lender shall not have made its full amount available to the Agent in immediately available funds and the Agent in such circumstances has made available to the Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to the Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by the Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to the Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to the Agent on the Business Day following the Funding Date, the Agent will notify the Borrower of such failure to fund and, upon demand by the Agent, the Borrower shall pay such amount to the Agent for the Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Loan, without in any way prejudicing the rights and remedies of the Interest Period with respect theretoBorrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) If a Borrower Party fails any Lender shall fail to give a timely notice requesting a conversion make any payment required to be made by it pursuant to Section 2.6(f), 2.10(d) or continuation8.2, then the applicable Loans Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Agent for the account of such Lender for the benefit of the Agent or the respective Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Agent in its discretion.
(h) All Advances under any Class shall be converted made by the Lenders under such Class contemporaneously and in accordance with their Pro Rata Shares of such Class. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to Base Rate Loansperform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder. Each Lender at its option may make any Term SOFR Advance by causing any Applicable Lending Office of such automatic conversion Lender to Base Rate Loans make such Loan; provided that any exercise of such option shall be effective as not affect the obligation of the last day of the Interest Period then in effect with respect Borrower to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an Interest Period of one month. Each Loan Notice submitted by a Borrower Party shall be deemed to be a representation and warranty that the applicable conditions specified in Section 6.02 have been satisfied on and as of the date of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of repay such Loan and reborrowed in accordance with the other currencyterms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (P10, Inc.)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, Borrowing shall be made on a Business Day and each continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email address as Agent may designate to Borrower in accordance herewith), or telefacsimile to Agent at the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3address (or its email address or telefacsimile number) indicated on Exhibit 11.3 attached hereto, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Base Rate Borrowing, a conversion of a Loan Borrower shall give Agent notice not later than noon Pacific Time 1 Business Day prior to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Agent notice no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day the LIBOR Rate Borrowing is to be made, and such notice shall specify (among other things) that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be available as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the “Loan Date”); (C) the principal amount of Loans to will be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate LoansBorrowing, and any such automatic conversion to Base outstanding LIBOR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified be a LIBOR Rate Loan with an Interest Period of one month(1) month upon expiration of the applicable Interest Period.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Borrowing or a LIBOR Rate Borrowing is received by Agent not later than noon, Pacific Time, on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before noon, Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan) or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by email, telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan Notice available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have an obligation to make, any Loan if Agent shall have actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (ii) the requested Loan would exceed the Availability on such Funding Date.
(e) Each Request for Borrowing shall (i) specify, if applicable, among other information, the identity of the Excluded Fund(s) that the proceeds of such Borrowing will be used by Borrower to invest in and the amount of each such Investment and (ii) include a description of all Margin Securities (if any) held or to be acquired by any Loan Party in connection with such Borrowing (including the name of the issuer of such Margin Securities, the owner (or proposed owner) thereof and the number of shares of each class of Margin Securities held or to be acquired by such Person), and the market value thereof, together with a description of the other Collateral held by such Loan Party in each case with such detail as may be required to enable Lender to comply with its obligations under Regulation U, and any other related information reasonably requested by Lender, and, upon request of the Lender, Borrower will provide a Borrower-prepared financial report with respect to the Loan Parties (including a Borrower-prepared balance sheet with respect to the Loan Parties) as of the end of the most recent fiscal month then ended.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower Party against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to each other Non-Defaulting Lender ratably in accordance with their Revolving Credit Facility Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other Non-Defaulting Lender), (ii) second, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iii) third, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (i) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolving Credit Facility Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the date matters governed by Section 11.2(a)(i) through (iii). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (x) the Non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (y) the Defaulting Lender makes its Pro Rata Share of the applicable BorrowingLoans and pays to Agent all amounts owing by Defaulting Lender in respect thereof and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. No The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Facility Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan may Document, it is the intention of the parties hereto that such provisions be converted into or continued read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal amount of the Loans, the portions thereof owing to each Lender, and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan denominated in (or other extension of credit) hereunder, nor shall any Revolving Credit Facility Commitment of any Lender be increased or decreased as a different currencyresult of any failure by any other Lender to perform its obligations hereunder, but instead must be prepaid in the original currency of such Loan and reborrowed in the (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other currencyLender from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Request for Borrowing. Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to anotherthe other, and each continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans shall be made upon the applicable Borrower PartyBorrower’s irrevocable written notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3
(a) Agent. Each such notice must be confirmed promptly received by delivery to Administrative Agent not later than 12:00 noon at least: (i) three (3) Business Days prior to the requested date of a written Loan Noticeany Borrowing of, appropriately completed conversion to or continuation of LIBOR Rate Loans or of any conversion of LIBOR Rate Loans to Base Rate Loans; and signed by a Responsible Officer (ii) one (1) Business Day prior to the requested date of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer any Borrowing of the applicable Borrower)Base Rate Loans. Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loans from one Type of Loan to another Type of Loanthe other, or a continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to be borrowed or to which any existing Loans are to be converted; (E) if applicable, the duration of the Interest Period with respect thereto; and (F) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If Borrower fails to specify a Type of Loan in a Loan Notice or if Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to Base to, a LIBOR Rate Loans, and any Loan with a one month Interest Period. Any such automatic conversion to Base LIBOR Rate Loans with a one month Interest Period shall be effective as of the last day of the Interest Period then in effect with respect to the applicable LIBOR Rate Loans. If Borrower requests a Borrower Party Borrowing of, conversion to, or continuation of LIBOR Rate Loans in any such Loan Notice, but fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate LoanPeriod, it will be deemed to have specified an Interest Period of one month. Each Loan Notice submitted by a Borrower Party shall be deemed to be a representation and warranty that the applicable conditions specified in Section 6.02 have been satisfied on and as of the date of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
Appears in 1 contract
Sources: Credit Agreement (New England Realty Associates Limited Partnership)
Request for Borrowing. (a) Each Base Rate Borrowing shall be made on a Business Day and each LIBOR Rate Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, each conversion of Base Rate Loanswhich Request for Borrowing shall be irrevocable and shall be given by telex, Term SOFR Loanstelecopy, Alternative Currency Term Rate Loans mail, or Daily personal service, and delivered to Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇, ▇▇▇▇ ▇▇▇▇-▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ v.54890-8208-0090 v.3▇▇▇▇▇, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Base Rate Borrowing, a conversion of a Loan Borrower shall give Lender notice not later than noon Pacific Time 1 Business Day prior to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Lender notice at least two (2) Eurodollar Business Days before the date the LIBOR Rate Loan is to be made, and such notice shall specify that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be extended as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the “Loan Date”); will be a Base Rate Borrowing.
(Cc) If the principal amount notice provided for in clause (b) of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) this Section 2.6 with respect to a Term SOFR Loan Base Rate Borrowing or Alternative Currency Term a LIBOR Rate LoanBorrowing is received by Lender not later than 2:00 p.m., Pacific Time, on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before 2:00 p.m., Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) If the proceeds of the applicable Borrowing are used to fund a Special Purpose Investment, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect Request for Borrowing required by Section 2.6(b) above with respect to the applicable Loans. If such Borrowing shall include a Borrower Party fails written notice or certification pursuant to specify an Interest Period with respect 12 CFR §221.5(b) which is reasonably satisfactory to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an Interest Period of one month. Each Loan Notice submitted by a Borrower Party shall be deemed to be a representation and warranty that the applicable conditions specified in Section 6.02 have been satisfied on and as of the date of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencyLender.
Appears in 1 contract
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan shall be made upon written notice, by way of a Request for Borrowing, each conversion of Base Rate Loanswhich Request for Borrowing shall be irrevocable and shall be given by telefacsimile, Term SOFR Loansmail, Alternative Currency Term Rate Loans email or Daily personal service, and delivered to Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3, as follows:
(i) for a Base Rate Loan, Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is one (1) Business Day prior to the requested Funding Date, and such Request for Borrowing shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Loan, Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is two (2) Eurodollar Business Days before the requested Funding Date, and such Request for Borrowing shall specify that a LIBOR Rate Loan is requested and state the amount and the initial Interest Period applicable thereto (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Event of Default has occurred and is continuing. If Administrative Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan, provided that Administrative Borrower may at any time thereafter convert such Base Rate Loan into a LIBOR Rate Loan in accordance with the terms of this Agreement. In connection with each LIBOR Rate Loan, each Borrower shall indemnify, defend, and hold Lender harmless against any loss, cost, or expense incurred by Lender as a result of (a) must be confirmed promptly by delivery to Administrative Agent the prepayment of a written any LIBOR Rate Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which on any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of day other than the last day of the Interest Period then applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR Rate Loan on any day other than the last day of the Interest Period applicable thereto, or (c) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or notice of prepayment, as applicable, delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Lender, be deemed to equal the amount determined by Lender to be the excess, if any, of (i) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that DB2/ 42498508.4 would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (ii) the amount of interest that would accrue on such principal amount for such period at the interest rate which Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Lender delivered to Administrative Borrower setting forth any amount or amounts that Lender is entitled to receive pursuant to this Section 2.7(b) (which certificate shall include Lender’s calculations of such amount or amounts) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.7 with respect to a Term SOFR Base Rate Loan or Alternative Currency Term a LIBOR Rate LoanLoan is received by Lender not later than noon Pacific time, it on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before noon Pacific time, of one month. Each Loan Notice submitted the next Business Day or Eurodollar Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) The initial Request for Borrowing shall include certification by a Responsible Officer of Administrative Borrower Party shall be deemed to be a representation and warranty that each of the applicable conditions specified in Section 6.02 Article III have been satisfied on and as or waived. Each Request for Borrowing delivered to Lender thereafter shall include a certificate by a Responsible Officer of Administrative Borrower that each of the date of the applicable Borrowing. No Loan may be converted into conditions set forth in Section 3.2 have been satisfied or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencywaived.
Appears in 1 contract
Sources: Credit Agreement (Silvercrest Asset Management Group Inc.)
Request for Borrowing. (a) Each Base Rate Borrowing shall be made on a Business Day and each LIBOR Rate Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, each conversion of Base Rate Loanswhich Request for Borrowing shall be irrevocable and shall be given by telex, Term SOFR Loanstelecopy, Alternative Currency Term Rate Loans mail, or Daily personal service, and delivered to Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇, ▇▇▇▇ ▇▇▇▇-▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ v.54890-8208-0090 v.3▇▇▇▇▇, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Base Rate Borrowing, a conversion of a Loan Borrower shall give Lender notice not later than noon Pacific Time 1 Business Day prior to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Lender notice no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day the LIBOR Rate Borrowing is to be made, and such notice shall specify that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be available as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the “Loan Date”); (C) the principal amount of Loans to will be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate LoansBorrowing, and any such automatic conversion to Base outstanding LIBOR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified be a LIBOR Rate Loan with an Interest Period of one month. Each Loan Notice submitted (1) month upon expiration of the applicable Interest Period.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Borrowing or a LIBOR Rate Borrowing is received by Lender not later than noon, Pacific Time, on a Borrower Party Business Day or Eurodollar Business Day, as applicable, such day shall be deemed treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before noon, Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) Each Request for Borrowing shall (i) specify, if applicable, among other information, the identity of the Excluded Fund(s) that the proceeds of such Borrowing will be used by Borrower to invest in and the amount of each such Investment and (ii) include a description of all Margin Securities (if any) held or to be acquired by any Loan Party in connection with such Borrowing (including the name of the issuer of such Margin Securities, the owner (or proposed owner) thereof and the number of shares of each class of Margin Securities held or to be acquired by such Person), and, upon request of the Lender, Borrower will provide a representation and warranty that Borrower-prepared financial report with respect to the applicable conditions specified in Section 6.02 have been satisfied on and Loan Parties (including a Borrower-prepared balance sheet with respect to the Loan Parties) as of the date end of the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currencymost recent fiscal month then ended.
Appears in 1 contract
Sources: Credit Agreement (JMP Group Inc.)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, Borrowing shall be made on a Business Day and each continuation of Term SOFR Loans or Alternative Currency Term LIBOR Rate Loans Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be personally delivered or sent by registered or certified mail (postage prepaid, return receipt requested), overnight courier, electronic mail (at such email address as Agent may designate to Borrower in accordance herewith), or telefacsimile to Agent at the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3address (or its email address or telefacsimile number) indicated on Exhibit 11.3 attached hereto, as follows:
(ai) must be confirmed promptly by delivery to Administrative Agent of for a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a Base Rate Borrowing, a conversion of a Loan Borrower shall give Agent notice not later than noon Pacific Time 1 Business Day prior to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may on which such Borrowing is to be made (which date shall be a Business Day), and such notice shall specify that a Base Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II);
(ii) for a LIBOR Rate Borrowing, Borrower shall give Agent notice no earlier than two (2) Eurodollar Business Days before and no later than noon Pacific Time on the day the LIBOR Rate Borrowing is to be made, and such notice shall specify (among other things) that a LIBOR Rate Borrowing is requested and state the amount thereof (subject to the provisions of this Article II); provided, however, that no Borrowing shall be available as a LIBOR Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If Borrower fails to designate a Loan as a LIBOR Rate Borrowing in accordance herewith, the “Loan Date”); (C) the principal amount of Loans to will be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate LoansBorrowing, and any such automatic conversion to Base outstanding LIBOR Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified be a LIBOR Rate Loan with an Interest Period of one month(1) month upon expiration of the applicable Interest Period.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Borrowing or a LIBOR Rate Borrowing is received by Agent not later than noon, Pacific Time, on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be treated as having been received immediately before noon, Pacific Time, of the next Business Day or Eurodollar Business Day, as applicable.
(d) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan) or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by email, telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan Notice available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans from the Lenders, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have an obligation to make, any Loan if Agent shall have actual knowledge that (i) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (ii) the requested Loan would exceed the Availability on such Funding Date.
(e) Each Request for Borrowing shall (i) specify, if applicable, among other information, the identity of the Excluded Fund(s) that the proceeds of such Borrowing will be used by Borrower to invest in and the amount of each such Investment and (ii) include a description of all Margin Securities (if any) held or to be acquired by any Loan Party in connection with such Borrowing (including the name of the issuer of such Margin Securities, the owner (or proposed owner) thereof and the number of shares of each class of Margin Securities held or to be acquired by such Person), and the market value thereof, together with a description of the other Collateral held by such Loan Party in each case with such detail as may be required to enable Lender to comply with its obligations under Regulation U, and any other related information reasonably requested by Lender, and, upon request of the Lender, Borrower will provide a Borrower-prepared financial report with respect to the Loan Parties (including a Borrower-prepared balance sheet with respect to the Loan Parties) as of the end of the most recent fiscal month then ended.
(f) Unless Agent receives notice from a Lender on or prior to the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 a.m. (Pacific time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and remedies of Borrower Party against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to each other Non-Defaulting Lender ratably in accordance with their Revolving Credit Facility Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other Non-Defaulting Lender), (ii) second, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iii) third, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (i) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretionreasonable discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolving Credit Facility Commitment shall be deemed to be a representation and warranty zero; provided, that the applicable conditions specified in Section 6.02 have been satisfied on and as foregoing shall not apply to any of the date matters governed by Section 11.2(a)(i) through (iii). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (x) the Non-Defaulting Lenders, Agent, and Borrower shall have waived such Defaulting Lender’s default in writing, or (y) the Defaulting Lender makes its Pro Rata Share of the applicable BorrowingLoans and pays to Agent all amounts owing by Defaulting Lender in respect thereof and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. No The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Facility Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) without any premium or penalty of any kind whatsoever; provided, however, that any such assumption of the Revolving Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan may Document, it is the intention of the parties hereto that such provisions be converted into or continued read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal amount of the Loans, the portions thereof owing to each Lender, and the interests therein of each Lender, from time to time and such records shall, absent manifest error, conclusively be presumed to be correct and accurate.
(i) All Loans shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Loan denominated in (or other extension of credit) hereunder, nor shall any Revolving Credit Facility Commitment of any Lender be increased or decreased as a different currencyresult of any failure by any other Lender to perform its obligations hereunder, but instead must be prepaid in the original currency of such Loan and reborrowed in the (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other currencyLender from its obligations hereunder.
Appears in 1 contract
Sources: Credit Agreement (JMP Group LLC)
Request for Borrowing. Each To request a Borrowing, each conversion the Borrower shall notify the Administrative Agent of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3
such request by telephone (a) must in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the Closing Date or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the Closing Date. Each such telephonic Borrowing Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Loan Notice, appropriately completed Borrowing Request in a form approved by the Administrative Agent and signed by a Responsible Officer the Borrower. Each such telephonic and written Borrowing Request shall specify the following information:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting a requested Borrowing, a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Loan DateInterest Period”); and
(Cv) the principal amount location and number of Loans the Borrower’s account to which funds are to be borroweddisbursed, converted or continued; (D) which shall comply with the requirements of Section 2.06. If no election as to the Type of Loans to which any existing Loans are to Borrowing is specified, then the requested Borrowing shall be converted; (E) to which account the proceeds of such an ABR Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) . If no Interest Period is specified with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuationany requested Eurodollar Borrowing, then the applicable Loans Borrower shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Loans. If a Borrower Party fails to specify an Interest Period with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified selected an Interest Period of one month’s duration. Each Promptly following receipt of a Borrowing Request in accordance with this Section, the Administrative Agent shall advise each Lender of the details thereof and of the amount of such Lender’s Loan Notice submitted by a Borrower Party shall be deemed to be a representation and warranty that the applicable conditions specified in Section 6.02 have been satisfied on and made as part of the date of the applicable requested Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in the original currency of such Loan and reborrowed in the other currency.
Appears in 1 contract
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, shall be made on a Business Day and each continuation LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan or Letter of Term SOFR Loans or Alternative Currency Term Rate Loans Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by facsimile, mail, electronic mail (in a format bearing a copy of the applicable Borrower Party’s irrevocable notice signature(s) required thereon), or personal service, and delivered to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3Agent and Issuing Bank as provided in Section 11.3.
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) for a LIBOR Rate Loan, Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by delivery the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to Administrative the rate then applicable to Base Rate Loans hereunder. If Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 (i) with respect to a Term SOFR Base Rate Loan or a LIBOR Rate Loan denominated in Dollars is received by Agent not later than 1:00 p.m. New York time or (ii) with respect to a LIBOR Rate Loan denominated in an Alternative Currency Term Rate Loanis received by Agent not later than 10:00 a.m. London time, it on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before 1:00 p.m. New York time (or 10:00 a.m. London time), of one month. Each Loan Notice submitted by a Borrower Party the next Business Day or Eurodollar Business Day, as applicable, and such day shall be deemed treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, (i) whether the applicable Loan or Letter of Credit will be used for the Loan Parties’ general working capital purposes or to fund an Investment in an Ares Fund (and if the latter, the identity of the Ares Fund(s) that the proceeds of such Loan will be used by Borrower to invest in and the amount of each such Investment, if applicable), (ii) after giving effect to such Loan or Letter of Credit, the outstanding amount of Loans and Letters of Credit that have been used to finance an Investment in each Ares Fund (by Ares Fund), and the outstanding amount of all Loans and Letters of Credit that have been used for the Loan Parties’ general working capital purposes, (iii) with respect to any Ares Fund as to which the proceeds of Loans are to be used to fund investments, the fair market value of the investments of the Loan Parties in such Ares Fund, (iv) with respect to any Margin Securities held by any Loan Party, a representation and warranty that description of such Margin Securities as well as the applicable conditions specified in Section 6.02 have been satisfied on and fair market value thereof as of the date of such Request for Borrowing and (v) the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in amount of the original currency proceeds of such Loan and reborrowed that will be made available to each of Ares Holdings, Ares Domestic Holdings, Ares Investments, Ares Real Estate, or another entity comprising Borrower.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders not later than 2:00 p.m. Local Time, on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other currencysimilar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. Local Time on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Holdings or another entity comprising Borrower (other than Ares Domestic Holdings, Ares Investments or Ares Real Estate) in the applicable Request for Borrowing, (x) transferring to the Ares Domestic Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Domestic Holdings in the applicable Request for Borrowing,
(y) transferring to the Ares Investments Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Investments in the applicable Request for Borrowing, and (z) transferring to the Ares Real Estate Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Real Estate in the applicable Request for Borrowing ; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Restatement Effective Date or, with respect to any Loan after the Restatement Effective Date, prior to 10:00 a.m. (New York time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
Appears in 1 contract
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each SOFR Loan shall be made on a Business Day.
(b) Each Loan or Letter of Credit that is proposed to be made after the Closing Date shall be made upon written notice, by way of a Request for Borrowing, each conversion which Request for Borrowing shall be irrevocable and shall be given by telefacsimile, mail, electronic mail (in a format bearing a copy of Base Rate Loansthe signature(s) required thereon), Term SOFR Loansor personal service, Alternative Currency Term Rate Loans or Daily and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ Loans from one Type of Loan to another▇▇▇▇▇▇, and each continuation of Term SOFR Loans or Alternative Currency Term Rate Loans shall be made upon the applicable Borrower Party’s irrevocable notice to Administrative 42 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇ v.54890-8208-0090 v.3▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, as follows:
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) on and after November 12, 2021, the Borrower shall no longer be confirmed promptly entitled to request additional LIBOR Rate Loans, continue existing LIBOR Rate Loans, and the Lender Group shall be under no obligation to make or continue LIBOR Rate Loans. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by delivery to Administrative Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”; provided, that, for the avoidance of doubt, Funding Losses shall not include any losses incurred under Section 2.6(f) or with respect to the applicable Loanswhich ▇▇▇▇▇▇▇▇ is required to reimburse Agent or any Lender under any other section of this Agreement). If a Borrower Party fails to specify an Interest Period Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount reasonably determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable thereto, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to offer, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(iii) for a SOFR Loan, Borrower shall give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such notice shall specify that a SOFR Loan is requested and state the amount and, in the case of a Term SOFR Loan or Alternative Currency Term Rate Loan, it will be deemed to have specified an the Interest Period thereof (subject to the provisions of one monththis Article II). Each Loan Notice submitted by a Borrower Party Request for Borrowing shall be deemed to be a representation request for a SOFR Loan unless such Request for Borrowing expressly requests a Base Rate Loan. At any time that an Event of Default has occurred and warranty is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on all outstanding SOFR Loans to the rate then applicable to Base Rate Loans hereunder.
(c) If the notice provided for in clause (b) of this Section 2.6 with respect to a Base Rate Loan or a SOFR Loan is received by Agent not later than 10 a.m. (Pacific Time), on a Business Day such day shall be treated as the first Business Day of the required notice period. In any other event, such notice will be treated as having been received immediately before 10 a.m. (Pacific Time), of the next Business Day and such day shall be treated as the first Business Day of the required notice period.
(d) Borrower shall give Agent written notice of the commencement of any period the Minimum Investment Condition is not satisfied by telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon), or personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, at least three (3) Business Days prior to the date the Minimum Investment Condition is not satisfied.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders, not later than 1:00 p.m. (Pacific Time) on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Business Day preceding the Funding Date (in the case of a SOFR Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other similar form of transmission, of the requested Loan. Each Lender shall make the amount of such ▇▇▇▇▇▇’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 10:00 a.m. (Pacific Time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to the proceeds that are requested by ▇▇▇▇▇▇▇▇ to be sent to Borrower in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions specified precedent set forth in Section 6.02 have been Article III will not be satisfied on and as of the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender, prior to 9:00 a.m. (Pacific Time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the applicable Borrowingaccount of Borrower the amount of that ▇▇▇▇▇▇’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. No If and to the extent any Lender (other than CNB) shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in on the original currency date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans composing such Loan, without in any way prejudicing the rights and reborrowed remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) (i) Notwithstanding the provisions of Section 2.3(a)(ii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (i) first, to Issuing Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (ii) second, to each other currencynon-Defaulting Lender ratably in accordance with their Revolver Commitments (but only to the extent that such Defaulting Lender’s Loan was funded by such other non-Defaulting Lender), (iii) third, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrower (upon the request of Borrower and subject to the conditions set forth in Section 3.2) as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder, and (iv) fourth, from and after the date when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (H) of Section 2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b), such Defaulting Lender shall be deemed not to be a “Lender” and such ▇▇▇▇▇▇’s Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 11.2(a) through (c). This Section shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, Agent, Issuing Lender, and Borrower shall have waived, in writing, the application of this Section 2.6(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Agent pursuant to Section 2.6(g)(ii) shall be released to Borrower). The operation of this Section shall not be construed to increase or otherwise affect the Revolver Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Agent, Issuing Lender or to the Lenders other than such Defaulting Lender. Any failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute ▇▇▇▇▇▇, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute ▇▇▇▇▇▇ (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, that any such assumption of the Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund, including Borrower’s right to require Defaulting Lender to reimburse Borrower for any fees, charges or expenses incurred by Borrower under this Section 2.3(g) as a result of the failure by any Defaulting Lender to fund amounts that it was obligated to fund hereunder. In the event of a direct conflict between the priority provisions of this Section 2.6(g) and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.6(g) shall control and govern.
Appears in 1 contract
Sources: Credit Agreement (Ares Commercial Real Estate Corp)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, shall be made on a Business Day and each continuation LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan or Letter of Term SOFR Loans or Alternative Currency Term Rate Loans Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by facsimile, mail, electronic mail (in a format bearing a copy of the applicable Borrower Party’s irrevocable notice signature(s) required thereon), or personal service, and delivered to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3Agent and Issuing Bank as provided in Section 11.3.
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) for a LIBOR Rate Loan, Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by delivery the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to Administrative the rate then applicable to Base Rate Loans hereunder. If Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 (i) with respect to a Term SOFR Base Rate Loan or a LIBOR Rate Loan denominated in Dollars is received by Agent not later than 1:00 p.m. New York time or (ii) with respect to a LIBOR Rate Loan denominated in an Alternative Currency Term Rate Loanis received by Agent not later than 10:00 a.m. London time, it on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before 1:00 p.m. New York time (or 10:00 a.m. London time), of one month. Each Loan Notice submitted by a Borrower Party the next Business Day or Eurodollar Business Day, as applicable, and such day shall be deemed treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, (i) whether the applicable Loan or Letter of Credit will be used for the Loan Parties’ general working capital purposes or to fund an Investment in an Aresa Fund (and if the latter, the identity of the Ares Fund(s) that the proceeds of such Loan will be used by Borrower to invest in and the amount of each such Investment, if applicable), (ii) after giving effect to such Loan or Letter of Credit, the outstanding amount of Loans and Letters of Credit that have been used to finance an Investment in each Ares Fund (by Aressuch Fund), and the outstanding amount of all Loans and Letters of Credit that have been used for the Loan Parties’ general working capital purposes, (iii) with respect to any Ares Fund as to which the proceeds of Loans are to be used to fund investments, the fair market value of the investments of the Loan Parties in such Ares Fund, (iv) with respect to any Margin Securities held by any Loan Party, a representation and warranty that description of such Margin Securities as well as the applicable conditions specified in Section 6.02 have been satisfied on and fair market value thereof as of the date of such Request for Borrowing and (v) the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in amount of the original currency proceeds of such Loan and reborrowed that will be made available to each of Ares Holdings, Ares Domestic Holdings, Ares Investments, Ares Real Estate, or another entity comprising Borrower.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders not later than 2:00 p.m. Local Time, on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other currencysimilar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. Local Time on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Holdings or another entity comprising Borrower (other than Ares Domestic Holdings, Ares Investments or Ares Real Estate) in the applicable Request for Borrowing, (x) transferring to the Ares Domestic Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Domestic Holdings in the applicable Request for Borrowing, (y) transferring to the Ares Investments Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Investments in the applicable Request for Borrowing, and (z) transferring to the Ares Real Estate Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Real Estate in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Restatement Effective Date or, with respect to any Loan after the Restatement Effective Date, prior to 10:00 a.m. (New York time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.10(d), 2.6(f) or 8.2, then the Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Agent for the account of such Lender for the benefit of the Agent or the respective Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Agent in its discretion.
(h) All Advances shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
Appears in 1 contract
Sources: Amendment No. 5 (Ares Management Lp)
Request for Borrowing. (a) Each Borrowing, each conversion of Base Rate Loans, Term SOFR Loans, Alternative Currency Term Rate Loans or Daily ▇▇▇▇▇ Loans from one Type of Loan to another, shall be made on a Business Day and each continuation LIBOR Rate Loan shall be made on a Eurodollar Business Day.
(b) Each Loan or Letter of Term SOFR Loans or Alternative Currency Term Rate Loans Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a Request for Borrowing, which Request for Borrowing shall be irrevocable and shall be given by facsimile, mail, electronic mail (in a format bearing a copy of the applicable Borrower Party’s irrevocable notice signature(s) required thereon), or personal service, and delivered to Administrative 42 ▇▇▇▇-▇▇▇▇-▇▇▇▇ v.54890-8208-0090 v.3Agent and Issuing Bank as provided in Section 11.3.
(ai) must for a Base Rate Loan, Borrower shall give Agent notice at least one (1) Business Day prior to the date that is the requested Funding Date, and such notice shall specify that a Base Rate Loan is requested and state the amount thereof (subject to the provisions of this Article II).
(ii) for a LIBOR Rate Loan, Borrower shall give Agent notice at least three (3) Eurodollar Business Days before the date the LIBOR Rate Loan is to be confirmed promptly made, and such notice shall specify that a LIBOR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. At any time that an Event of Default has occurred and is continuing, Agent may convert, and shall convert if so requested by delivery the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to Administrative the rate then applicable to Base Rate Loans hereunder. If Borrower fails to designate a Loan as a LIBOR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR Rate Loan, Borrower shall indemnify, defend, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of a written Loan Notice, appropriately completed and signed by a Responsible Officer of such Borrower Party (and each Loan Notice submitted by a Qualified Borrower must be countersigned by a Responsible Officer of the applicable Borrower). Each Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower Party is requesting payment of any principal of any LIBOR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a Borrowingresult of an Event of Default), a conversion of a Loan to another Type of Loan, or a continuation of Term SOFR Loans or Alternative Currency Term Rate Loans; (B) the requested date conversion of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day, the “any LIBOR Rate Loan Date”); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to which any existing Loans are to be converted; (E) to which account the proceeds of such Borrowing, conversion or continuation should be directed; (F) the currency of the Loans to be borrowed; and (G) with respect to a Term SOFR Loan or Alternative Currency Term Rate Loan, the duration of the Interest Period with respect thereto. If a Borrower Party fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be converted to Base Rate Loans, and any such automatic conversion to Base Rate Loans shall be effective as of other than on the last day of the Interest Period then applicable thereto, or (C) the failure to borrow, convert, continue or prepay any LIBOR Rate Loan on the date specified in effect any Request for Borrowing or Request for Conversion/Continuation delivered pursuant hereto (such losses, costs, and expenses, collectively, “Funding Losses”). Funding Losses shall, with respect to Agent or any Lender, be deemed to equal the amount determined by Agent or such Lender to be the excess, if any, of (I) the amount of interest that would have accrued on the principal amount of such LIBOR Rate Loan had such event not occurred, at the LIBOR Rate that would have been applicable Loans. If a Borrower Party fails thereto, for the period from the date of such event to specify an the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (II) the amount of interest that would accrue on such principal amount for such period at the interest rate which Agent or such Lender would be offered were it to be offered, at the commencement of such period, Dollar deposits of a comparable amount and period in the London interbank market. A certificate of Agent or a Lender delivered to Borrower setting forth any amount or amounts that Agent or such Lender is entitled to receive pursuant to this Section 2.6(b)(ii) shall be conclusive absent manifest error.
(c) If the notice provided for in clause (b) of this Section 2.6 (i) with respect to a Term SOFR Base Rate Loan or a LIBOR Rate Loan denominated in Dollars is received by Agent not later than 1:00 p.m. New York time or (ii) with respect to a LIBOR Rate Loan denominated in an Alternative Currency Term Rate Loanis received by Agent not later than 10:00 a.m. London time, it on a Business Day or Eurodollar Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period. In any other event, such notice will be deemed to have specified an Interest Period treated as having been received immediately before 1:00 p.m. New York time (or 10:00 a.m. London time), of one month. Each Loan Notice submitted by a Borrower Party the next Business Day or Eurodollar Business Day, as applicable, and such day shall be deemed treated as the first Business Day or Eurodollar Business Day, as applicable, of the required notice period.
(d) Each Request for Borrowing shall specify, among other information, (i) whether the applicable Loan or Letter of Credit will be used for the Loan Parties’ general working capital purposes or to fund an Investment in an Ares Fund (and if the latter, the identity of the Ares Fund(s) that the proceeds of such Loan will be used by Borrower to invest in and the amount of each such Investment, if applicable), (ii) after giving effect to such Loan or Letter of Credit, the outstanding amount of Loans and Letters of Credit that have been used to finance an Investment in each Ares Fund (by Ares Fund), and the outstanding amount of all Loans and Letters of Credit that have been used for the Loan Parties’ general working capital purposes, (iii) with respect to any Ares Fund as to which the proceeds of Loans are to be used to fund investments, the fair market value of the investments of the Loan Parties in such Ares Fund, (iv) with respect to any Margin Securities held by any Loan Party, a representation and warranty that description of such Margin Securities as well as the applicable conditions specified in Section 6.02 have been satisfied on and fair market value thereof as of the date of such Request for Borrowing and (v) the applicable Borrowing. No Loan may be converted into or continued as a Loan denominated in a different currency, but instead must be prepaid in amount of the original currency proceeds of such Loan and reborrowed that will be made available to each of Ares Holdings, Ares Domestic Holdings, Ares Investments, Ares Real Estate, or another entity comprising Borrower.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.6(b), Agent shall notify the Lenders not later than 2:00 p.m. Local Time, on the Business Day immediately preceding the Funding Date applicable thereto (in the case of a Base Rate Loan), or the third Eurodollar Business Day preceding the Funding Date (in the case of a LIBOR Rate Loan), by telecopy, electronic mail (in a format bearing a copy of the signature(s) required thereon), telephone, or other currencysimilar form of transmission, of the requested Loan. Each Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. Local Time on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Loans, Agent shall make the proceeds thereof available to Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Holdings or another entity comprising Borrower (other than Ares Domestic Holdings, Ares Investments or Ares Real Estate) in the applicable Request for Borrowing, (x) transferring to the Ares Domestic Holdings Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Domestic Holdings in the applicable Request for Borrowing, (y) transferring to the Ares Investments Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Investments in the applicable Request for Borrowing, and (z) transferring to the Ares Real Estate Designated Account immediately available funds equal to the proceeds that are requested by Borrower to be sent to Ares Real Estate in the applicable Request for Borrowing; provided, however, that Agent shall not request any Lender to make, and no Lender shall have the obligation to make, any Loan if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived, or (2) the requested Loan would exceed the Availability on such Funding Date.
(f) Unless Agent receives notice from a Lender on or prior to the Restatement Effective Date or, with respect to any Loan after the Restatement Effective Date, prior to 10:00 a.m. (New York time) on the date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of Borrower the amount of that Lender’s Pro Rata Share of the Loan, Agent may assume that each Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrower on such date a corresponding amount. If and to the extent any Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrower such amount, that Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s Loan on the date of such Loan for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Borrower of such failure to fund and, upon demand by Agent, Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Loan, at a rate per annum equal to the interest rate applicable at the time to the Loans comprising such Loan, without in any way prejudicing the rights and remedies of Borrower against the Defaulting Lender. The failure of any Lender to make any Loan on any Funding Date shall not relieve any other Lender of any obligation hereunder to make a Loan on such Funding Date, 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 any Funding Date.
(g) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.10(d), 2.6(f) or 8.2, then the Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Agent for the account of such Lender for the benefit of the Agent or the respective Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Agent in its discretion.
(h) All Advances shall be made by the Lenders contemporaneously and in accordance with their Pro Rata Shares. It is understood that (i) no Lender shall be responsible for any failure by any other Lender to perform its obligation to make any Advance (or other extension of credit) hereunder, nor shall any Revolver Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder, and (ii) no failure by any Lender to perform its obligations hereunder shall excuse any other Lender from its obligations hereunder.
Appears in 1 contract
Sources: Amendment No. 4 (Ares Management Lp)