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, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing 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 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 thereof (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 the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the 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 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 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 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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: 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 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, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or telefacsimile, mail, e-mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such . Such Request for Borrowing shall attach an updated Compliance Certificate duly executed by (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 Responsible Officer calculation of FS CREITthe Borrowing Base. Each Request for Borrowing shall be made not later than the time specified below 9:00 a.m. (Pacific time) on or before the date described below:
(i) in the case of a 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, 10:00 a.m. (Pacific Time) on the Business Day that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; or
(ii2) if such Borrowing is to be a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) at least one (1) three Eurodollar Business Day before Days (or such lesser period as agreed to by all Lenders in their discretion) prior to the date that is the LIBOR RateSOFR Loan is to be maderequested Funding Date, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest for Borrowing or Request for Conversion/Continuation 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, 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 by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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)(ii2.6(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 2.6 with respect to a Base Rate Loan or Loan, a LIBOR RateSOFR Rate Loan is received by Agent not later than 10:00 9:00 a.m. or 1:00 p.m. (Pacific Time), as applicable 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 10:00 9:00 a.m. or 1:00 p.m. (Pacific Time), as applicable, 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) 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[Intentionally Omitted].
(e) Promptly 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 Designated Account. Each Swing Loan shall be deemed to be a Loan hereunder and 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 precedent set forth in Section 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 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 2.7(b2.6(b), Agent shall notify the Lenders 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 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. 10:00 a.m. (Pacific Timetime) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such LoansLoans from the Lenders, Agent shall make the proceeds thereof available to the Borrowers Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Distribution Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have the an obligation to make, any Loan if Agent shall have actual knowledge that (1i) one or more of the applicable conditions precedent set forth in Section 3 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 (2ii) the requested Loan would exceed the Availability amount that Borrower is entitled to borrow as Loans hereunder (after giving effect to all then outstanding Obligations) on such Funding Date.
(fg) 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 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower such amount, that Lender shall shall, on the Business Day following such Funding Date 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 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date 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 remedies of the Borrowers 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 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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
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 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 written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) Borrower shall give Agent notice at least one three (13) Eurodollar Business Day Days before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR Rate Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan . Each Request for Borrowing shall be available as deemed to be a request for a LIBOR RateSOFR Rate Loan when unless such Request for Borrowing expressly requests a Base Rate Loan. At any Unmatured Event of Default or time that an Event of Default has occurred and is continuing. If , Agent may convert, and shall convert if so requested by the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewithRequired Lenders, the Loan will be a interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate LoanLoans hereunder. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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”; 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), 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 reasonably determined byA certificate of by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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 offeredoffer, 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)(ii2.6(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 2.6 with respect to a Base Rate Loan or a LIBOR RateSOFR Rate Loan is received by Agent not later than 10:00 10 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 10 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[Intentionally omitted].
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b2.6(b), Agent shall notify the Lenders 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 1:00 p.m. 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 Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent Borrower to be sent to Borrower in the Distribution Accountapplicable 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 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived 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 DateLender, prior to 9:00 a.m. (Pacific timeTime) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 the Borrowers 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 2.4(a)(ii2.3(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 Lenderbenefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (Ai) first, to Issuing Lender, Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a L/C Disbursement Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (Bii) second, to each Nonother non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, but only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Nonnon-Defaulting Lender), (Ciii) 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 the Borrowers Borrower (upon the request of the Borrowers 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 hereunder, and (Div) fourth, from and after the date on which when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (GH) of Section 2.4(a)(ii2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers 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 Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 12.2(a)(i11.2(a) through (iiic). The provisions of this 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 Nonnon-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers Borrower shall have waived, in writing, the application of this Section 2.7(g2.6(g) to such Defaulting Lender 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 hereunderhereunder (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 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, Lender or to the Lenders other than such Defaulting Lender. Any failure by a 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 the Borrowers, Borrower at their its 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 repaid its share of the outstanding Obligations (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 the Borrowers’ 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 2.7(g2.6(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 2.7(g2.6(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 (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 (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 Loan or Letter of Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Bank as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) Borrower shall give Agent notice at least one three (13) Eurodollar Business Day Days before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR 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 the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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 by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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)(ii2.6(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 2.6 (i) with respect to a Base Rate Loan or a LIBOR RateSOFR 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 is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time)London 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 1:00 p.m. New York time (or 10:00 a.m. or 1:00 p.m. (Pacific TimeLondon 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, (i) whether the intended use 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 description of such Margin Securities as well as the fair market value thereof as of the date of such Request for Borrowing and (v) the amount of the proceeds of such Loan or Letter of Credit and the amount to that will be applied made available to each such useof 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 2.7(b2.6(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 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 1:00 p.m. (Pacific Time) 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 the Borrowers Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to such the proceeds received that are requested by Agent 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 Distribution AccountAres 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 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 Restatement Effective Date or, with respect to any Loan after the Closing Restatement Effective Date, prior to 9:00 10:00 a.m. (Pacific New York time) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) Notwithstanding the provisions of If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(a)(ii2.10(d), 2.6(f) or 8.2, then the 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 andmay, in its Permitted Discretiondiscretion and notwithstanding any contrary provision hereof, re-lend to (i) apply any amounts thereafter received by 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 Lender for the purposes benefit of voting the Agent or consenting the respective Issuing Lender 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 satisfy such Lender’s Revolver Commitment shall be deemed obligations to be zero; providedit under such Section until all such unsatisfied obligations are fully paid, that the foregoing shall not apply to and/or (ii) hold 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 Non-Defaulting Lenders, Agent, Issuing Lenderamounts in a segregated account as cash collateral for, and the Borrowers shall have waivedapplication to, any future funding obligations of such Lender under any such Section, in writing, the application case of this Section 2.7(geach of clauses (i) 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. 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 due and payable in respect thereof, and (2ii) an assumption of above, in any order as determined by the Agent in 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 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 governdiscretion.
(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 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 Loan 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 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 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 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 written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to the Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Lender as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be For a Base Rate Loan, 10:00 a.m. (Pacific Time) 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 (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be For a LIBOR RateSOFR Term SOFR Loan, 1:00 p.m. the Borrower shall give the Agent notice not later than 12:00 noon New York City time three (Pacific Time3) at least one (1) Eurodollar Business Day Days before the date the LIBOR RateSOFR Term SOFR Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 LIBOR RateSOFR 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 the Required Lenders, the interest rate on all outstanding Term SOFR Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Term SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. .
(iii) In connection with each LIBOR RateSOFR Term SOFR Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR such Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), ; provided that (bB) the conversion of any LIBOR RateSOFR such Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR such Loan on the date specified in any LIBOR NoticeRequest Request for Borrowing or Request for Conversion/Continuation Continuation, as applicable, 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 The 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 (orFunding Losses shall be determined, in the case of a failure to borrowapplicable Lender’s sole discretion, convert, or continue, for based upon the period assumption 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 funded its ratable portion of the commencement of Term SOFR Loans and using any reasonable attribution or averaging methods which such period, Dollar deposits of a comparable amount Lender deems appropriate and period in the London interbank marketpractical. A certificate of the Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that the Agent or such Lender is entitled to receive pursuant to this Section 2.7(b)(ii2.6(b)(iii) 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[Reserved].
(d) Each Request for Borrowing shall specify, among other information, (i) the intended use Class of any such Loan, (ii) the proceeds date such Loan or Letter of Credit will be made or issued, which shall be a Business Day, (iii) whether any such Loan will be a Base Rate Loan or a Term SOFR Loan, (iv) the aggregate amount of such Loan or Letter of Credit and (v) in the amount case of a Term SOFR Loan, the initial Interest Period to be applied to each such useapplicable thereto, which shall be a period contemplated by the definition of the term “Interest Period.”
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b2.6(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 the third Business Day preceding the Funding Date (in 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 requested Loan. Each such Lender shall make the amount of such Lender’s Pro Rata Share of the requested Loan available to the Agent in immediately available funds, to the Agent’s Account, not later than 1:00 3:00 p.m. (Pacific Time) 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 Borrowers Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent to the Distribution AccountBorrower in the applicable Request for Borrowing; provided, 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 more of the applicable conditions precedent set forth in Section 3 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived waived, or (2) the 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 the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 10:00 a.m. (Pacific time) New York City time on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to the Agent for the account of the Borrowers 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 Borrowers 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 the Agent in immediately available funds and the Agent in such circumstances has made available to the Borrowers 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 Borrowers Borrower of such failure to fund and, upon demand by the Agent, the Borrowers 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 composing comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) Notwithstanding the provisions of If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(a)(ii2.6(f), 2.10(d) or 8.2, then the 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 andmay, in its Permitted Discretiondiscretion and notwithstanding any contrary provision hereof, re-lend to (i) apply any amounts thereafter received by 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 Lender for the purposes benefit of voting the Agent or consenting the respective Issuing Lender 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 satisfy such Lender’s Revolver Commitment shall be deemed obligations to be zero; providedit under such Section until all such unsatisfied obligations are fully paid, that the foregoing shall not apply to and/or (ii) hold 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 Non-Defaulting Lenders, Agent, Issuing Lenderamounts in a segregated account as cash collateral for, and the Borrowers shall have waivedapplication to, any future funding obligations of such Lender under any such Section, in writing, the application case of this Section 2.7(geach of clauses (i) 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. 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 due and payable in respect thereof, and (2ii) an assumption of above, in any order as determined by the Agent in 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 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 governdiscretion.
(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 Advances under any Class shall be made by the Lenders under such Class contemporaneously and in accordance with their Pro Rata SharesShares of such Class. 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 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 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 Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (P10, Inc.)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate SOFR Loan shall be made on a Eurodollar U.S. Government Securities Business Day.. DB2/ 43206048.6
(b) Each Borrowing Loan shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail telefacsimile, mail, email or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address telefacsimile number (▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-) ▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is one (Pacific Time1) on Business Day prior to the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II);
(ii) if such Borrowing is to be for a LIBOR RateSOFR SOFR Loan, 1:00 p.m. Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is two (Pacific Time2) at least one (1) Eurodollar U.S. Government Securities Business Day Days before the date the LIBOR RateSOFR Loan is to be maderequested Funding Date, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR Daily Simple SOFR Loan or Term SOFR Loan is requested and state the amount and and, with respect to a Term SOFR Loan, the initial Interest Period thereof applicable thereto (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR RateSOFR SOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the Borrowers shall indemnify, defend, and hold Agent and the Lenders harmless against provided that Administrative Borrower may at any 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 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 (time thereafter convert 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 Base Rate Loan (excluding margin or spread) had such event not occurred, at into a SOFR Loan in accordance with the LIBOR Rate that would have been applicable thereto, for the period from the date terms 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 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 thereofAgreement.
(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 SOFR Loan is received by Agent Lender not later than 10:00 a.m. or 1:00 p.m. (noon Pacific Time)time, as applicable on a Business Day or Eurodollar U.S. Government Securities Business Day, as applicable, such day shall be treated as the first Business Day or Eurodollar U.S. Government Securities 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. (noon Pacific Time), as applicabletime, of the next Business Day or Eurodollar U.S. Government Securities Business Day, as applicable, and such day shall be treated as the first Business Day or Eurodollar 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 that each of the conditions in Article III have been satisfied or waived. Each Request for Borrowing delivered to Lender thereafter shall specify, among other information, the intended use include a certificate by a Responsible Officer 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 Administrative Borrower 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 3.2 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 satisfied 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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 (Silvercrest Asset Management Group 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 Borrowing Loan or Letter of Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Bank as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) Borrower shall give Agent notice at least one three (13) Eurodollar Business Day Days before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR 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 the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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 by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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)(ii2.6(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 2.6 (i) with respect to a Base Rate Loan or a LIBOR RateSOFR 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 is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time)London 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 1:00 p.m. New York time (or 10:00 a.m. or 1:00 p.m. (Pacific TimeLondon 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, (i) whether the intended use 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 description of such Margin Securities as well as the fair market value thereof as of the date of such Request for Borrowing and (v) the amount of the proceeds of such Loan or Letter of Credit and the amount to that will be applied made available to each such useof 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 2.7(b2.6(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 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 1:00 p.m. (Pacific Time) 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 the Borrowers Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to such the proceeds received that are requested by Agent 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 Distribution AccountAres 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 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 Restatement Effective Date or, with respect to any Loan after the Closing Restatement Effective Date, prior to 9:00 10:00 a.m. (Pacific New York time) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) Notwithstanding the provisions of If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(a)(ii2.10(d), 2.6(f) or 8.2, then the 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 andmay, in its Permitted Discretiondiscretion and notwithstanding any contrary provision hereof, re-lend to (i) apply any amounts thereafter received by 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 Lender for the purposes benefit of voting the Agent or consenting the respective Issuing Lender 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 satisfy such Lender’s Revolver Commitment shall be deemed obligations to be zero; providedit under such Section until all such unsatisfied obligations are fully paid, that the foregoing shall not apply to and/or (ii) hold 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 Non-Defaulting Lenders, Agent, Issuing Lenderamounts in a segregated account as cash collateral for, and the Borrowers shall have waivedapplication to, any future funding obligations of such Lender under any such Section, in writing, the application case of this Section 2.7(geach of clauses (i) 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. 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 due and payable in respect thereof, and (2ii) an assumption of above, in any order as determined by the Agent in 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 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 governdiscretion.
(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 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 Loan 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 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)
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate SOFR Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing 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 written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice 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 thereof (subject to the provisions of this Article II); provided.
(ii) on and after November 12, that 2021, the Borrower shall no Loan longer be entitled to request additional LIBOR Rate Loans, continue existing LIBOR Rate Loans, and the Lender Group shall be available as a under no obligation to make or continue LIBOR RateSOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate LoanLoans. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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”; 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 ▇▇▇▇▇▇▇▇ is required to reimburse Agent or any Lender under any other section of this Agreement), 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 reasonably determined byA certificate of by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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 offeredoffer, 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)(ii2.6(b)(ii) shall be conclusive absent manifest error. The Borrowers .
(iii) for a SOFR Loan, Borrower shall pay give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such Lender notice shall specify that a SOFR Loan is requested and state the amount shown as due and, in the case of a Term SOFR Loan, the Interest Period thereof (subject to the provisions of this Article II). Each Request for Borrowing shall be deemed to be a 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 is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on any such certificate within ten (10) days after receipt thereofall 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 2.7 2.6 with respect to a Base Rate Loan or a LIBOR RateSOFR SOFR Loan is received by Agent not later than 10:00 10 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 10 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 Borrower shall specify, among other information, the intended use give Agent written notice of the proceeds commencement of such Loan 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 Letter of Credit personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, at least three (3) Business Days prior to the amount to be applied to each such usedate the Minimum Investment Condition is not satisfied.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b2.6(b), Agent shall notify the Lenders 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 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. 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 Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent ▇▇▇▇▇▇▇▇ to be sent to Borrower in the Distribution Accountapplicable 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 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived 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 DateLender, prior to 9:00 a.m. (Pacific timeTime) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 the Borrowers 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 2.4(a)(ii2.3(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 (Ai) first, to Issuing Lender, Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a L/C Disbursement Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (Bii) second, to each Nonother non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, but only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Nonnon-Defaulting Lender), (Ciii) 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 the Borrowers Borrower (upon the request of the Borrowers 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 hereunder, and (Div) fourth, from and after the date on which when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (GH) of Section 2.4(a)(ii2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers 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 Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 12.2(a)(i11.2(a) through (iiic). The provisions of this 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 Nonnon-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. 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 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 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 (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.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 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 written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to the Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Lender as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be For a Base Rate Loan, 10:00 a.m. (Pacific Time) 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 (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be For a LIBOR RateSOFR Term SOFR Loan, 1:00 p.m. the Borrower shall give the Agent notice not later than 12:00 noon New York City time three (Pacific Time3) at least one (1) Eurodollar Business Day Days before the date the LIBOR RateSOFR Term SOFR Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 LIBOR RateSOFR 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 the Required Lenders, the interest rate on all outstanding Term SOFR Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Term SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. .
(iii) In connection with each LIBOR RateSOFR Term SOFR Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR such Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), ; provided that (bB) the conversion of any LIBOR RateSOFR such Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR such Loan on the date specified in any LIBOR NoticeRequest Request for Borrowing or Request for Conversion/Continuation Continuation, as applicable, 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 The 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 (orFunding Losses shall be determined, in the case of a failure to borrowapplicable Lender’s sole discretion, convert, or continue, for based upon the period assumption 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 funded its ratable portion of the commencement of Term SOFR Loans and using any reasonable attribution or averaging methods which such period, Dollar deposits of a comparable amount Lender deems appropriate and period in the London interbank marketpractical. A certificate of the Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that the Agent or such Lender is entitled to receive pursuant to this Section 2.7(b)(ii2.6(b)(iii) 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[Reserved].
(d) Each Request for Borrowing shall specify, among other information, (i) the intended use Class of any such Loan, (ii) the proceeds date such Loan or Letter of Credit will be made or issued, which shall be a Business Day, (iii) whether any such Loan will be a Base Rate Loan or a Term SOFR Loan, (iv) the aggregate amount of such Loan or Letter of Credit and (v) in the amount case of a Term SOFR Loan, the initial Interest Period to be applied to each such useapplicable thereto, which shall be a period contemplated by the definition of the term “Interest Period.”
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b2.6(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 the third Business Day preceding the Funding Date (in 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 requested Loan. Each such Lender shall make the amount of such Lender▇▇▇▇▇▇’s Pro Rata Share of the requested Loan available to the Agent in immediately available funds, to the Agent’s Account, not later than 1:00 3:00 p.m. (Pacific Time) 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 Borrowers Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent to the Distribution AccountBorrower in the applicable Request for Borrowing; provided, 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 more of the applicable conditions precedent set forth in Section 3 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived waived, or (2) the 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 the Closing Date or, with respect to any Loan after the Closing Date, prior to 9:00 10:00 a.m. (Pacific time) New York City time on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to the Agent for the account of the Borrowers 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 Borrowers 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 the Agent in immediately available funds and the Agent in such circumstances has made available to the Borrowers 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 Borrowers Borrower of such failure to fund and, upon demand by the Agent, the Borrowers 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 composing comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) Notwithstanding the provisions of If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(a)(ii2.6(f), 2.10(d) or 8.2, then the 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 andmay, in its Permitted Discretiondiscretion and notwithstanding any contrary provision hereof, re-lend to (i) apply any amounts thereafter received by 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 Lender for the purposes benefit of voting the Agent or consenting the respective Issuing Lender 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 satisfy such Lender’s Revolver Commitment shall be deemed obligations to be zero; providedit under such Section until all such unsatisfied obligations are fully paid, that the foregoing shall not apply to and/or (ii) hold 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 Non-Defaulting Lenders, Agent, Issuing Lenderamounts in a segregated account as cash collateral for, and the Borrowers shall have waivedapplication to, any future funding obligations of such Lender under any such Section, in writing, the application case of this Section 2.7(geach of clauses (i) 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. 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 due and payable in respect thereof, and (2ii) an assumption of above, in any order as determined by the Agent in 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 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 governdiscretion.
(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 Advances under any Class shall be made by the Lenders under such Class contemporaneously and in accordance with their Pro Rata SharesShares of such Class. 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 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 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 Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
Appears in 1 contract
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate SOFR Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing 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 written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice 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 thereof (subject to the provisions of this Article II); provided.
(ii) on and after November 12, that 2021, the Borrower shall no Loan longer be entitled to request additional LIBOR Rate Loans, continue existing LIBOR Rate Loans, and the Lender Group shall be available as a under no obligation to make or continue LIBOR RateSOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate LoanLoans. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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”; 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 ▇▇▇▇▇▇▇▇ is required to reimburse Agent or any Lender under any other section of this Agreement), 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 reasonably determined byA certificate of by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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 offeredoffer, 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)(ii2.6(b)(ii) shall be conclusive absent manifest error. The Borrowers .
(iii) for a SOFR Loan, Borrower shall pay give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such Lender notice shall specify that a SOFR Loan is requested and state the amount shown as due and, in the case of a Term SOFR Loan, the Interest Period thereof (subject to the provisions of this Article II). Each Request for Borrowing shall be deemed to be a 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 is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on any such certificate within ten (10) days after receipt thereofall 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 2.7 2.6 with respect to a Base Rate Loan or a LIBOR RateSOFR SOFR Loan is received by Agent not later than 10:00 10 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 10 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 Borrower shall specify, among other information, the intended use give Agent written notice of the proceeds commencement of such Loan 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 Letter of Credit personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, at least three (3) Business Days prior to the amount to be applied to each such usedate the Minimum Investment Condition is not satisfied.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b2.6(b), Agent shall notify the Lenders 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 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. 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 Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent ▇▇▇▇▇▇▇▇ to be sent to Borrower in the Distribution Accountapplicable 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 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived 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 DateLender, prior to 9:00 a.m. (Pacific timeTime) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 the Borrowers 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 2.4(a)(ii2.3(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 (Ai) first, to Issuing Lender, Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a L/C Disbursement Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (Bii) second, to each Nonother non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, but only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Nonnon-Defaulting Lender), (Ciii) 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 the Borrowers Borrower (upon the request of the Borrowers 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 hereunder, and (Div) fourth, from and after the date on which when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (GH) of Section 2.4(a)(ii2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers 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 Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 12.2(a)(i11.2(a) through (iiic). The provisions of this 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 Nonnon-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers Borrower shall have waived, in writing, the application of this Section 2.7(g2.6(g) to such Defaulting Lender 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 hereunderhereunder (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 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, Lender or to the Lenders other than such Defaulting Lender. Any failure by a 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 the Borrowers, Borrower at their its 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 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 the Borrowers’ 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 2.7(g2.6(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 2.7(g2.6(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 (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 (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, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), and delivered to Agent at ▇4▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇A▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇9▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of 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 is requested and state the amount thereof; or
(ii) if such Borrowing is to be a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) at least one (1) Eurodollar Business Day before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the 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 RateSOFR Rate 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 of any LIBOR RateSOFR Rate 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 Rate Loan on the date specified in any LIBOR NoticeRequest for Borrowing or Request for Conversion/Continuation 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, 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 by Agent or sucha 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 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 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 1:00 p.m. 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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: 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 Borrowing shall be made by a written Request for Borrowing, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or telefacsimile, mail, e-mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address addresses ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇ and ▇▇▇▇, and such ▇▇.▇▇▇▇▇▇@▇▇▇.▇▇▇. Such Request for Borrowing shall attach an updated Compliance Certificate duly executed by (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 Responsible Officer calculation of FS CREITthe Borrowing Base. Each Request for Borrowing shall be made not later than the time specified below 9:00 a.m. (Pacific time) on or before the date described below:
(i) in the case of a 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, 10:00 a.m. (Pacific Time) on the Business Day that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; or
(ii2) if such Borrowing is to be a LIBOR RateSOFR SOFR Loan, 1:00 p.m. (Pacific Time) at least one (1) Eurodollar Business Day before (or such lesser period as agreed to by all Lenders in their discretion) prior to the date that is the LIBOR RateSOFR Loan is to be maderequested Funding Date, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR SOFR Loan is requested and state the amount and and, if applicable, Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan shall be available as a LIBOR RateSOFR SOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR SOFR Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR SOFR Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR SOFR Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR SOFR Loan on the date specified in any LIBOR NoticeRequest for Borrowing or Request for Conversion/Continuation 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, 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 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)(ii2.6(b)(ii) shall be conclusive absent manifest error. The Borrowers Borrower shall pay such Lender the amount shown as due on any such certificate within ten (10) 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 2.6 is received by Agent not later than 10:00 9:00 a.m. or 1:00 p.m. (Pacific Time), as applicable 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 10:00 9:00 a.m. or 1:00 p.m. (Pacific Time), as applicable, 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) 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[Intentionally Omitted].
(e) Promptly 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 Designated Account. Each Swing Loan shall be deemed to be a Loan hereunder and 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 precedent set forth in Section 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 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 2.7(b2.6(b), Agent shall notify the Lenders 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 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. 10:00 a.m. (Pacific Timetime) on the Funding Date applicable theretothereto (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 LoansLoans from the Lenders, Agent shall make the proceeds thereof available to the Borrowers Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Distribution Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have the an obligation to make, any Loan if Agent shall have actual knowledge that (1i) one or more of the applicable conditions precedent set forth in Section 3 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 (2ii) the requested Loan would exceed the Availability amount that Borrower is entitled to borrow as Loans hereunder (after giving effect to all then outstanding Obligations) on such Funding Date.
(fg) 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 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower such amount, that Lender shall shall, on the Business Day following such Funding Date 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 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date 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 remedies of the Borrowers 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 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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
Request for Borrowing. (a) Each Base Rate Loan shall be made on a Business Day and each LIBOR Rate SOFR Loan shall be made on a Eurodollar Business Day.
(b) Each Borrowing 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 written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-telefacsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice 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 thereof (subject to the provisions of this Article II); provided.
(ii) on and after November 12, that 2021, the Borrower shall no Loan longer be entitled to request additional LIBOR Rate Loans, continue existing LIBOR Rate Loans, and the Lender Group shall be available as a under no obligation to make or continue LIBOR RateSOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate LoanLoans. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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”; 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 ▇▇▇▇▇▇▇▇ is required to reimburse Agent or any Lender under any other section of this Agreement), 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 reasonably determined byA certificate of by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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 offeredoffer, 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)(ii2.6(b)(ii) shall be conclusive absent manifest error. The Borrowers .
(iii) for a SOFR Loan, Borrower shall pay give Agent notice at least three (3) Business Days before the date the SOFR Loan is to be made, and such Lender notice shall specify that a SOFR Loan is requested and state the amount shown as due and, in the case of a Term SOFR Loan, the Interest Period thereof (subject to the provisions of this Article II). Each Request for Borrowing shall be deemed to be a 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 is continuing, Agent may convert, and shall convert if so requested by the Required Lenders, the interest rate on any such certificate within ten (10) days after receipt thereofall 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 2.7 2.6 with respect to a Base Rate Loan or a LIBOR RateSOFR SOFR Loan is received by Agent not later than 10:00 10 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 10 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 Borrower shall specify, among other information, the intended use give Agent written notice of the proceeds commencement of such Loan 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 Letter of Credit personal service, and delivered to Agent at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, telefacsimile number (▇▇▇) ▇▇▇-▇▇▇▇, e-mail address ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇▇, at least three (3) Business Days prior to the amount to be applied to each such usedate the Minimum Investment Condition is not satisfied.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(b2.6(b), Agent shall notify the Lenders 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 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. 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 Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent ▇▇▇▇▇▇▇▇ to be sent to Borrower in the Distribution Accountapplicable 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 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived 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 DateLender, prior to 9:00 a.m. (Pacific timeTime) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 the Borrowers 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 2.4(a)(ii2.3(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 (Ai) first, to Issuing Lender, Lender to the extent of the portion of any payment made by Issuing Lender pursuant to a L/C Disbursement Letter of Credit that was required to be, but was not, paid by the Defaulting Lender, (Bii) second, to each Nonother non-Defaulting Lender ratably in accordance with their Revolver Commitments (but, in each case, but only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Nonnon-Defaulting Lender), (Ciii) 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 the Borrowers Borrower (upon the request of the Borrowers 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 hereunder, and (Div) fourth, from and after the date on which when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (GH) of Section 2.4(a)(ii2.3(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to the Borrowers 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 Revolver Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 12.2(a)(i11.2(a) through (iiic). The provisions of this 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 Nonnon-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers Borrower shall have waived, in writing, the application of this Section 2.7(g2.6(g) to such Defaulting Lender 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 hereunderhereunder (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 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, Lender or to the Lenders other than such Defaulting Lender. Any failure by a 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 the Borrowers, Borrower at their its 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 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 the Borrowers’ 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 2.7(g2.6(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 2.7(g2.6(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 (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 (Ares Commercial Real Estate Corp)
Request for Borrowing. (a) Each Base Rate Loan Borrowing shall be made on a Business Day and each LIBOR Rate Loan Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, given irrevocable and shall be personally delivered or sent by an Authorized Person by mail registered or e-certified mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of deliverypostage prepaid, return receipt requested), and delivered overnight courier, electronic mail (at such email address as Agent may designate to Borrower in accordance herewith), or telefacsimile to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇the address (or its email address or telefacsimile number) indicated on Exhibit 11.3 attached hereto, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if for a Base Rate Borrowing, Borrower shall give Agent notice not later than noon Pacific Time 1 Business Day prior to the date on which such Borrowing is to be made (which date shall 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 discretionBusiness Day), and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan Borrowing is requested and state the amount thereof; orthereof (subject to the provisions of this Article II);
(ii) if such Borrowing is to be for a LIBOR RateSOFR LoanRate Borrowing, 1:00 p.m. Borrower shall give Agent notice no earlier than two (Pacific Time) at least one (12) Eurodollar Business Day Days before and no later than noon Pacific Time on the date day the LIBOR RateSOFR Loan Rate Borrowing is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR Loan Rate Borrowing is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan Borrowing shall be available as a LIBOR RateSOFR Loan Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan Rate Borrowing in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the Borrowers shall indemnify, defendBorrowing, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as outstanding LIBOR Rate Loan will be deemed to be a result of (a) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of with an Interest Period applicable thereto of one (including as a result of an Event of Default), (b1) the conversion of any LIBOR RateSOFR Loan other than on the last day month upon expiration of the applicable 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 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 thereofPeriod.
(c) If the notice provided for in clause (b) of this Section 2.7 2.6 with respect to a Base Rate Loan Borrowing or a LIBOR RateSOFR Loan Rate Borrowing is received by Agent not later than 10:00 a.m. or 1:00 p.m. (noon, 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. (noon, 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 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 available to Agent in immediately available funds, to Agent’s Account, not later than 1:00 p.m. 10:00 a.m. (Pacific Timetime) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such LoansLoans from the Lenders, Agent shall make the proceeds thereof available to the Borrowers Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Distribution Borrower’s Designated Account; provided, that Agent shall not request any Lender to make, and no Lender shall have the an obligation to make, any Loan if Agent shall have actual knowledge that (1i) 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 waived, or (2ii) 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 Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 the Borrowers 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) Notwithstanding the provisions of Section 2.4(a)(ii), (i) 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 (Ai) 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 other Non-Defaulting Lender ratably in accordance with their Revolver Revolving Credit Facility Commitments (but, in each case, but 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), (Cii) 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 the Borrowers Borrower (upon the request of the Borrowers 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 hereunder, and (Diii) third, from and after the date on which when all other Obligations have been paid in full, to such Defaulting Lender in accordance with tier (Gi) of Section 2.4(a)(ii). Subject to the foregoing, Agent may hold and, in its Permitted DiscretionDiscretionreasonable discretion, re-lend to the Borrowers 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 Revolver Revolving Credit Facility Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any of the matters governed by Section 12.2(a)(i11.2(a)(i) through (iii). The provisions of this This Section 2.7(g) shall remain effective with respect to such Defaulting Lender until the earlier of (yx) the date on which all of the Non-Defaulting Lenders, Agent, Issuing Lender, and the Borrowers Borrower shall have waived, waived such Defaulting Lender’s default in writing, the application of this Section 2.7(g) to such Defaulting Lender or (zy) the date on which such Defaulting Lender makes payment its Pro Rata Share of all amounts that it was obligated to fund hereunder, the applicable Loans and pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, thereof and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. The operation of this Section 2.7(g) shall not be construed to increase or otherwise affect the Revolver 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 any Borrower of its duties and obligations hereunder to Agent, Issuing Lender, Agent or to the Lenders other than such Defaulting Lender. Any such failure to fund by a 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 the Borrowers, Borrower at their its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolver Revolving 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 repaid its share of the outstanding Obligations (including (1other than Bank Product Obligations) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption without any premium or penalty of its Pro Rata Share of its participation in the Letters of Credit)any kind whatsoever; provided, however, that any such assumption of the Revolver Revolving Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or the Borrowers’ 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 2.7(g2.6(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 2.7(g2.6(g) shall control and govern.
(h) Agent, as a non-fiduciary agent for the BorrowersBorrower, shall maintain a register showing the principal amount of the Loans, the portions thereof owing to each Lender 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 (or other extension of credit) hereunder, nor shall any Revolver Revolving Credit Facility Commitment of any Lender be increased or decreased as a result of any failure by any other Lender to perform its obligations hereunder 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 (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 Loan or Letter of Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Bank as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) Borrower shall give Agent notice at least one three (13) Eurodollar Business Day Days before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR 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 the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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 by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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)(ii2.6(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 2.6 (i) with respect to a Base Rate Loan or a LIBOR RateSOFR 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 is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time)London 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 1:00 p.m. New York time (or 10:00 a.m. or 1:00 p.m. (Pacific TimeLondon 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, (i) whether the intended use 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 description of such Margin Securities as well as the fair market value thereof as of the date of such Request for Borrowing and (v) the amount of the proceeds of such Loan or Letter of Credit and the amount to that will be applied made available to each such useof 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 2.7(b2.6(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 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 1:00 p.m. (Pacific Time) 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 the Borrowers Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to such the proceeds received that are requested by Agent 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 Distribution AccountAres 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 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 Restatement Effective Date or, with respect to any Loan after the Closing Restatement Effective Date, prior to 9:00 10:00 a.m. (Pacific New York time) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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
Request for Borrowing. (a) Each Base Rate Loan Borrowing shall be made on a Business Day and each LIBOR Rate Loan Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail telex, telecopy, mail, or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if for a Base Rate Borrowing, Borrower shall give Lender notice not later than noon Pacific Time 1 Business Day prior to the date on which such Borrowing is to be made (which date shall 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 discretionBusiness Day), and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan Borrowing is requested and state the amount thereof; orthereof (subject to the provisions of this Article II);
(ii) if such Borrowing is to be for a LIBOR RateSOFR LoanRate Borrowing, 1:00 p.m. Borrower shall give Lender notice no earlier than two (Pacific Time) at least one (12) Eurodollar Business Day Days before and no later than noon Pacific Time on the date day the LIBOR RateSOFR Loan Rate Borrowing is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR Loan Rate Borrowing is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan Borrowing shall be available as a LIBOR RateSOFR Loan Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan Rate Borrowing in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the Borrowers shall indemnify, defendBorrowing, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as outstanding LIBOR Rate Loan will be deemed to be a result of (a) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of with an Interest Period applicable thereto of one (including as a result of an Event of Default), (b1) the conversion of any LIBOR RateSOFR Loan other than on the last day month upon expiration of the applicable 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 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 thereofPeriod.
(c) If the notice provided for in clause (b) of this Section 2.7 2.6 with respect to a Base Rate Loan Borrowing or a LIBOR RateSOFR Loan Rate Borrowing is received by Agent Lender not later than 10:00 a.m. or 1:00 p.m. (noon, 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. (noon, 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 (i) specify, if applicable, among other information, the intended use identity of the Excluded Fund(s) that the proceeds of such Loan or Letter of Credit 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 applied 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 each be acquired by such use.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(bPerson), 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 fullLender, 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, reBorrower will provide a Borrower-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 prepared financial report with respect to the Loan Documents Parties (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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Borrower-prepared balance sheet with respect to such Defaulting Lender until the earlier of (yLoan Parties) the date on which all as of the Non-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 end 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. 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 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 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 governmost recent fiscal month then ended.
(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 (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 (JMP Group Inc.)
Request for Borrowing. (a) Each Base Rate Loan Borrowing shall be made on a Business Day and each LIBOR Rate Loan Borrowing shall be made on a Eurodollar Business Day.
(b) Each Borrowing shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, given irrevocable and shall be personally delivered or sent by an Authorized Person by mail registered or e-certified mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of deliverypostage prepaid, return receipt requested), and delivered overnight courier, electronic mail (at such email address as Lender may designate to Agent Borrower in accordance herewith), or telefacsimile to Lender at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇the address (or its email address or telefacsimile number) indicated on Exhibit 9.3 attached hereto, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if for a Base Rate Borrowing, Borrower shall give Lender notice not later than noon Pacific Time 1 Business Day prior to the date on which such Borrowing is to be made (which date shall 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 discretionBusiness Day), and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan Borrowing is requested and state the amount thereof; orthereof (subject to the provisions of this Article II);
(ii) if such Borrowing is to be for a LIBOR RateSOFR LoanRate Borrowing, 1:00 p.m. Borrower shall give Lender notice no earlier than two (Pacific Time) at least one (12) Eurodollar Business Day Days before and no later than noon Pacific Time on the date day the LIBOR RateSOFR Loan Rate Borrowing is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR Loan Rate Borrowing is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, however, that no Loan Borrowing shall be available as a LIBOR RateSOFR Loan Rate Borrowing when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan Rate Borrowing in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the Borrowers shall indemnify, defendBorrowing, and hold Agent and the Lenders harmless against any loss, cost, or expense incurred by Agent or any Lender as outstanding LIBOR Rate Loan will be deemed to be a result of (a) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of with an Interest Period applicable thereto of one (including as a result of an Event of Default), (b1) the conversion of any LIBOR RateSOFR Loan other than on the last day month upon expiration of the applicable 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 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 thereofPeriod.
(c) If the notice provided for in clause (b) of this Section 2.7 2.6 with respect to a Base Rate Loan Borrowing or a LIBOR RateSOFR Loan Rate Borrowing is received by Agent Lender not later than 10:00 a.m. or 1:00 p.m. (noon, 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. (noon, 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 (i) specify, if applicable, among other information, the intended use identity of the Excluded Fund(s) that the proceeds of such Loan or Letter of Credit 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 applied 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 each be acquired by such use.
(e) Promptly after receipt of a Request for Borrowing pursuant to Section 2.7(bPerson), Agent shall notify and 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 Agentmarket value thereof, 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 description of the Borrowers against the Defaulting Lender. The failure of any other Collateral held by such Loan Party in each case with such detail as may be required to enable Lender to make any Loan on any Funding Date shall not relieve comply with its obligations under Regulation U, and 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 related information reasonably requested 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 fullLender, 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, reBorrower will provide a Borrower-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 prepared financial report with respect to the Loan Documents Parties (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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Borrower-prepared balance sheet with respect to such Defaulting Lender until the earlier of (yLoan Parties) the date on which all as of the Non-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 end 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. 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 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 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 governmost recent fiscal month then ended.
(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 (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 (JMP Group 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 Borrowing Loan shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail telefacsimile, mail, email or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address telefacsimile number (▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-) ▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is one (Pacific Time1) on Business Day prior to the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II);
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is two (Pacific Time) at least one (12) Eurodollar Business Day Days before the date the LIBOR RateSOFR Loan is to be maderequested Funding Date, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR Rate Loan is requested and state the amount and the initial Interest Period thereof applicable thereto (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR RateSOFR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR 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 RateSOFR Rate Loan, the Borrowers each Borrower shall indemnify, defend, and hold Agent and the Lenders Lender harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of (a) the payment of any principal prepayment of any LIBOR RateSOFR Rate Loan on any day other than on the last day of an the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR RateSOFR Rate Loan on any day 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 Rate Loan on the date specified in any LIBOR NoticeRequest Request for Borrowing or Request for Conversion/Continuation notice of prepayment, as applicable, 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 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 (excluding margin or spread) had such event not occurred, at the LIBOR Rate that DB2/ 42498508.4 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 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)(ii2.7(b) (which certificate shall include Lender’s calculations of such amount or amounts) 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 Rate Loan is received by Agent Lender not later than 10:00 a.m. or 1:00 p.m. (noon Pacific Time)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. (noon Pacific Time), as applicabletime, 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) The initial Request for Borrowing shall include certification by a Responsible Officer of Administrative Borrower that each of the conditions in Article III have been satisfied or waived. Each Request for Borrowing delivered to Lender thereafter shall specify, among other information, the intended use include a certificate by a Responsible Officer 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 Administrative Borrower 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 3.2 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 satisfied 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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 (Silvercrest Asset Management Group 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 Borrowing Loan or Letter of Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Bank as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Borrower shall give Agent notice at least one (Pacific Time1) on Business Day prior to the date that is the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) Borrower shall give Agent notice at least one three (13) Eurodollar Business Day Days before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR 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 the Required Lenders, the interest rate on all outstanding LIBOR Rate Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR Rate Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (bB) the conversion of any LIBOR RateSOFR Rate Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR Rate Loan on the date specified in any LIBOR NoticeRequest Request 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 by Agent or sucha such Lender to be the excess, if any, of (iI) 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 the case of a failure to borrow, convert, or continue, for the period that would have been the Interest Period therefor), minus (iiII) 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)(ii2.6(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 2.6 (i) with respect to a Base Rate Loan or a LIBOR RateSOFR 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 is received by Agent not later than 10:00 a.m. or 1:00 p.m. (Pacific Time)London 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 1:00 p.m. New York time (or 10:00 a.m. or 1:00 p.m. (Pacific TimeLondon 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, (i) whether the intended use 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 description of such Margin Securities as well as the fair market value thereof as of the date of such Request for Borrowing and (v) the amount of the proceeds of such Loan or Letter of Credit and the amount to that will be applied made available to each such useof 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 2.7(b2.6(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 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 1:00 p.m. (Pacific Time) 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 the Borrowers Borrower on the applicable Funding Date by (w) transferring to the Ares Holdings Designated Account immediately available funds equal to such the proceeds received that are requested by Agent 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 Distribution AccountAres 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 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 Restatement Effective Date or, with respect to any Loan after the Closing Restatement Effective Date, prior to 9:00 10:00 a.m. (Pacific New York time) on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to Agent for the account of the Borrowers 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 the Borrowers 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 the Borrowers 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 the Borrowers Borrower of such failure to fund and, upon demand by Agent, the Borrowers 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 comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) Notwithstanding the provisions of If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(a)(ii2.10(d), 2.6(f) or 8.2, then the 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 andmay, in its Permitted Discretiondiscretion and notwithstanding any contrary provision hereof, re-lend to (i) apply any amounts thereafter received by 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 Lender for the purposes benefit of voting the Agent or consenting the respective Issuing Lender 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 satisfy such Lender’s Revolver Commitment shall be deemed obligations to be zero; providedit under such Section until all such unsatisfied obligations are fully paid, that the foregoing shall not apply to and/or (ii) hold 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 Non-Defaulting Lenders, Agent, Issuing Lenderamounts in a segregated account as cash collateral for, and the Borrowers shall have waivedapplication to, any future funding obligations of such Lender under any such Section, in writing, the application case of this Section 2.7(geach of clauses (i) 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. 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 due and payable in respect thereof, and (2ii) an assumption of above, in any order as determined by the Agent in 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 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 governdiscretion.
(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 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 Loan 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 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 Base Rate Loan To request the making of the Loans hereunder on the Closing Date, the Borrower (on behalf of the applicable Co-Borrower) shall notify the Agent of such request either in writing by delivery of a Borrowing Request (by hand or facsimile) signed by the Borrower (on behalf of the applicable Co-Borrower) or by telephone not later than 11:00 a.m., New York City time, two (2) Business Days before the proposed Closing Date (or such later time as shall be made acceptable to the Agent). In order to request a Borrowing (other than the Borrowing on the Closing Date, a Swingline Loan or a deemed Borrowing pursuant to Section 2.02(d), as to which this Section 2.03 shall not apply), the Borrower shall hand deliver or fax to the Agent a duly completed Borrowing Request (i) in the case of a LIBOR Rate Borrowing, not later than 12:00 Noon, New York City time, three Business Days before a proposed Borrowing and (ii) in the case of an ABR Borrowing, not later than 2:00 p.m., New York City time, one Business Day before a proposed Borrowing. Each Borrowing Request shall be irrevocable (except in the case of the one in respect of the Closing Date if the Closing Date does not occur), shall be signed by or on behalf of the Borrower (on behalf of the applicable Co-Borrower) and shall specify the following information:
(1) whether the Borrowing then being requested is to be a Term Loan Borrowing or a Revolving Credit Borrowing;
(2) the aggregate amount of the requested Borrowing;
(3) the date of such Borrowing, which shall be a Business Day and each Day;
(4) whether the Borrowing is to be an ABR Borrowing or a LIBOR Rate Loan Borrowing;
(5) in the case of a LIBOR Rate Borrowing, the initial Interest Period with respect thereto, which shall be a period contemplated by the definition of the term "Interest Period"; and
(6) the Co-Borrower(s) for whose benefit the Loan is to be made on a Eurodollar Business Dayand the number and location of the accounts to which funds are to be disbursed; and provided, however, that, notwithstanding any contrary specification in any Borrowing Request, each requested Borrowing shall comply with the requirements set forth in Section 2.02.
(b) Each If no election as to the Type of Borrowing is specified in any such notice, then the requested Borrowing shall be made by a written Request for an ABR Borrowing, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing 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 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 If no Interest Period thereof (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 the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the 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 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 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 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 LIBOR 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 Borrowing 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 specified in any way prejudicing such notice, then 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 relevant Co-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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 selected an Interest Period of one month's duration. Promptly following receipt of the outstanding Obligations (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 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 Borrowing Request in accordance with their Pro Rata Shares. It is understood that (i) no this Section, the Agent shall advise each Lender shall of the details thereof and of such Lender's Loan to be responsible for any failure by any other Lender to perform its obligation to make any Loan (or other extension made as part 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 hereunderthe requested Borrowing.
Appears in 1 contract
Sources: Credit Agreement (Harland Financial Solutions, 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 Borrowing Loan or Letter of Credit that is proposed to be made after the Restatement Effective Date shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail or e-facsimile, mail, electronic mail (in a format bearing a copy of the signature(s) required thereon) ), or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to the Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇and Issuing Lender as provided in Section 11.3.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if such Borrowing is to be For a Base Rate Loan, 10:00 a.m. (Pacific Time) 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 (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing notice shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II).
(ii) if such Borrowing is to be For a LIBOR RateSOFR Term SOFR Loan, 1:00 p.m. the Borrower shall give the Agent notice not later than 12:00 noon New York City time three (Pacific Time3) at least one (1) Eurodollar Business Day Days before the date the LIBOR RateSOFR Term SOFR Loan is to be made, and such Request for Borrowing notice shall specify (among other things) that a LIBOR RateSOFR 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 LIBOR RateSOFR 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 the Required Lenders, the interest rate on all outstanding Term SOFR Loans to the rate then applicable to Base Rate Loans hereunder. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Term SOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. .
(iii) In connection with each LIBOR RateSOFR Term SOFR Loan, the Borrowers 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 (aA) the payment of any principal of any LIBOR RateSOFR such Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), ; provided that (bB) the conversion of any LIBOR RateSOFR such Loan other than on the last day of the Interest Period applicable thereto, or (cC) the failure to borrow, convert, continue or prepay any LIBOR RateSOFR such Loan on the date specified in any LIBOR NoticeRequest Request for Borrowing or Request for Conversion/Continuation Continuation, as applicable, 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 The 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 (orFunding Losses shall be determined, in the case of a failure to borrowapplicable Lender’s sole discretion, convert, or continue, for based upon the period assumption 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 funded its ratable portion of the commencement of Term SOFR Loans and using any reasonable attribution or averaging methods which such period, Dollar deposits of a comparable amount Lender deems appropriate and period in the London interbank marketpractical. A certificate of the Agent or a Lender delivered to the Administrative Borrower setting forth any amount or amounts that the Agent or such Lender is entitled to receive pursuant to this Section 2.7(b)(ii2.6(b)(iii) 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[Reserved].
(d) Each Request for Borrowing shall specify, among other information, (i) the intended use Class of any such Loan, (ii) the proceeds date such Loan or Letter of Credit will be made or issued, which shall be a Business Day, (iii) whether any such Loan will be a Base Rate Loan or a Term SOFR Loan, (iv) the aggregate amount of such Loan or Letter of Credit and (v) in the amount case of a Term SOFR Loan, the initial Interest Period to be applied to each such useapplicable thereto, 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 2.7(b2.6(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 the third Business Day preceding the Funding Date (in 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 requested Loan. Each such Lender shall make the amount of such LenderL▇▇▇▇▇’s Pro Rata Share of the requested Loan available to the Agent in immediately available funds, to the Agent’s Account, not later than 1:00 3:00 p.m. (Pacific Time) 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 Borrowers Borrower on the applicable Funding Date by transferring to the Designated Account immediately available funds equal to such the proceeds received that are requested by Agent to the Distribution AccountBorrower in the applicable Request for Borrowing; provided, 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 more of the applicable conditions precedent set forth in Section 3 Article III will not be satisfied on the requested Funding Date for the applicable Loan unless such condition has been waived waived, or (2) the 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 the Closing Restatement Effective Date or, with respect to any Loan after the Closing Restatement Effective Date, prior to 9:00 10:00 a.m. (Pacific time) New York City time on the Funding Date date of such Loan, that such Lender will not make available as and when required hereunder to the Agent for the account of the Borrowers Borrower the amount of that LenderL▇▇▇▇▇’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 Borrowers 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 the Agent in immediately available funds and the Agent in such circumstances has made available to the Borrowers 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 Borrowers Borrower of such failure to fund and, upon demand by the Agent, the Borrowers 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 composing comprising such Loan, without in any way prejudicing the rights and remedies of the Borrowers 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) Notwithstanding the provisions of If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.4(a)(ii2.6(f), 2.10(d) or 8.2, then the 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 andmay, in its Permitted Discretiondiscretion and notwithstanding any contrary provision hereof, re-lend to (i) apply any amounts thereafter received by 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 Lender for the purposes benefit of voting the Agent or consenting the respective Issuing Lender 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 satisfy such Lender’s Revolver Commitment shall be deemed obligations to be zero; providedit under such Section until all such unsatisfied obligations are fully paid, that the foregoing shall not apply to and/or (ii) hold 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 Non-Defaulting Lenders, Agent, Issuing Lenderamounts in a segregated account as cash collateral for, and the Borrowers shall have waivedapplication to, any future funding obligations of such Lender under any such Section, in writing, the application case of this Section 2.7(geach of clauses (i) 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. 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 due and payable in respect thereof, and (2ii) an assumption of above, in any order as determined by the Agent in 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 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 governdiscretion.
(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 Advances under any Class shall be made by the Lenders under such Class contemporaneously and in accordance with their Pro Rata SharesShares of such Class. 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 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 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 Lender to make such Loan; provided that any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement.
Appears in 1 contract
Sources: Credit Agreement (P10, Inc.)
Request for Borrowing. Each Borrowing, each conversion of Loans from one Type of Loan to the other, and each continuation of LIBOR Rate Loans shall be made upon the Borrower’s irrevocable notice to Administrative Agent, which may be given by telephone or electronic mail. Each such notice must be received by Administrative Agent not later than 10:00 a.m. at least: (i) one (1) Business Day prior to the requested date of any Borrowing of, conversion to or continuation of LIBOR Rate Loans or of any conversion of LIBOR Rate Loans to Base Rate Loans; and (ii) on the same day of requested date of any Borrowing of Base Rate Loans. Each telephonic or electronic mail notice by the Borrower pursuant to this Section 2.02
(a) Each Base Rate Loan shall must 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 confirmed promptly by delivery to Administrative Agent of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone Loan Notice (which shall may be confirmed delivered by one of the other means of deliveryelectronic mail), appropriately completed and delivered to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed signed by a Responsible Officer of FS CREITsuch Borrower and accompanied by an updated Borrowing Base Report detailing the Available Revolving Amount calculated after giving effect to the requested Loans. Each Request for Loan Notice (whether telephonic or written) shall specify: (A) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type of Loan to the other, or a continuation of LIBOR Rate Loans; (B) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day); (C) the principal amount of Loans to be borrowed, converted or continued; (D) the Type of Loans to be borrowed or to which 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 should be directed. If the Borrower fails to specify a Type of Loan in a Loan Notice or if the Borrower fails to give a timely notice requesting (i) a conversion, then the applicable Loans shall be made not later than as, or converted to, a LIBOR Rate Loan with an Interest Period of one month, or (ii) a continuation, then the time specified below on or before the date described below:
(i) if such Borrowing is to applicable Loan shall be continued as a Base LIBOR 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 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 thereof (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 the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the 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 RateSOFR Loan other than on the last day of an Interest Period applicable thereto (including of one month. Any such automatic conversion to Base Rate Loans shall be effective as a result of an Event of Default), (b) the conversion 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 then 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 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 effect with respect to the Loan Documents (including applicable LIBOR Rate Loans. If the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 2.11(b)Borrower requests a Borrowing of, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 hereunderconversion to, or continuation of LIBOR Rate Loans in any such Loan Notice, but fails to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agentspecify an Interest Period, 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 will be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share specified an Interest Period of the outstanding Obligations (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 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 governone month.
(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 (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
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, which Request for Borrowing shall be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery), and delivered to Agent at ▇4▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇A▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇9▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Borrowing Request for Borrowing 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 is requested and state the amount thereof; or
(ii) if such Borrowing is to be a LIBOR RateSOFR Rate Loan, 1:00 p.m. (Pacific Time) at least one (1) Eurodollar Business Day before the date the LIBOR RateSOFR Rate Loan is to be made, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR 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 RateSOFR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Rate Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Rate Loan, the 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 RateSOFR Rate 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 of any LIBOR RateSOFR Rate 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 Rate Loan on the date specified in any LIBOR NoticeRequest for Borrowing or Request for Conversion/Continuation 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, 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 by Agent or sucha 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 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 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 1:00 p.m. 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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: Loan and Security Agreement (FS Credit Real Estate Income Trust, Inc.)
Request for Borrowing. Except with respect to Swingline Loans which are addressed in Section 2.07, each Borrowing, each conversion of Daily SOFR Loans or Term SOFR Loans or Base Rate Loans from one Type of Syndicated Loan to another, and each continuation of Term SOFR Loans shall be made upon the applicable Borrower Party’s irrevocable written notice to Administrative Agent. Unless otherwise agreed by Administrative Agent, each Loan Notice must be received by Administrative Agent no later than (ai) Each 11:00 a.m. at least: (A) three (3) Business Days prior to the requested date of any Borrowing other than for a Base Rate Loan shall be made on a or Daily SOFR Loan; (B) three (3) Business Days prior to the conversion of Base Rate Loans to another Type of Syndicated Loan or the continuation of Term SOFR Loans; and (C) one (1) Business Day prior to the requested date of any Borrowing of Daily SOFR Loans or of any conversion of Term SOFR Loans to Daily SOFR Loans, and each LIBOR (ii) 10:00 a.m. on the requested date of any Borrowing of Base Rate Loans or of any conversion of Daily SOFR Loans or Term SOFR Loans to Base Rate Loans. Each Loan Notice shall specify: (A) whether the Borrower Party is requesting a Borrowing, a conversion of a Daily SOFR Loan, Term SOFR Loan or Base Rate Loan shall be made on to another Type of Syndicated Loan, or a Eurodollar Business Day.
continuation of Term SOFR Loans; (bB) Each Borrowing shall be made by a written Request for the requested date of the Borrowing, which Request for Borrowing shall conversion or continuation, as the case may be irrevocable, given by an Authorized Person by mail or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one a Business Day, the “Loan Date”); (C) the principal amount of the other means Syndicated Loans to be borrowed, converted or continued; (D) if any portion of delivery), and delivered such Borrowing is not to Agent at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed be funded by a Responsible Officer Conduit Lender through the issuance of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described below:
(i) if Commercial Paper, whether such portion of such Borrowing is to be funded instead as a Base Rate Loan, 10:00 a.m. Daily SOFR Loan or Term SOFR Loan (Pacific Time) it being understood that if any Conduit Lender elects to fund any Page portion of a Loan through its Liquidity Provider, such Conduit Lender’s Funding Agent shall determine whether such portion shall bear interest based on the requested Funding Date (Daily Simple SOFR, Term SOFR Rate or such lesser period as agreed to by Agent in its discretion), and such Request for Borrowing shall specify (among other things) that a the Base Rate for the period prior to the time such portion of such Loan is requested and state funded through the amount thereofissuance of Commercial Paper); or
(iiE) if such Borrowing is the Type of Syndicated Loans to which any existing Daily SOFR Loans, Term SOFR Loans or Base Rate Loans are to be converted; and (F) to which account the proceeds of such Borrowing, conversion or continuation should be directed. If a LIBOR RateSOFR Borrower Party fails to give a timely notice requesting a continuation of a Term SOFR Loan, 1:00 p.m. (Pacific Time) at least then the applicable Loan shall be continued as a Term SOFR Loan with an Interest Period of one (1) Eurodollar Business Day before the date the LIBOR RateSOFR Loan is to be mademonth, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR Loan is requested and state the amount and Interest Period thereof (subject to the provisions of this Article II); provided, that no Loan continuation shall be available effective as a LIBOR RateSOFR Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR Loan in accordance herewith, the Loan will be a Base Rate Loan. In connection with each LIBOR RateSOFR Loan, the 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 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 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 then 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, effect with respect to Agent or any Lender, be deemed the applicable Term SOFR Loan. If a Borrower Party fails 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 specify an 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 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 Term SOFR Loan, that such Lender it 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 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 specified an Interest Period of the outstanding Obligations (including one (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 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 governmonth.
(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 (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: Revolving Credit Agreement (TCW Steel City Senior Lending BDC)
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 Loan shall be made upon written notice, by way of a written Request for Borrowing, which Request for Borrowing shall be irrevocable, irrevocable and shall be given by an Authorized Person by mail telefacsimile, mail, email or e-mail (in a format bearing a copy of the signature(s) required thereon) or by telephone (which shall be confirmed by one of the other means of delivery)personal service, and delivered to Agent Lender at ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, e-mail address telefacsimile number (▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇.▇▇▇, telephone ▇▇▇-) ▇▇▇-▇▇▇▇, and such Request for Borrowing shall attach an updated Compliance Certificate duly executed by a Responsible Officer of FS CREIT. Each Request for Borrowing shall be made not later than the time specified below on or before the date described belowas follows:
(i) if such Borrowing is to be for a Base Rate Loan, 10:00 a.m. Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is one (Pacific Time1) on Business Day prior to the requested Funding Date (or such lesser period as agreed to by Agent in its discretion)Date, and such Request for Borrowing shall specify (among other things) that a Base Rate Loan is requested and state the amount thereof; orthereof (subject to the provisions of this Article II);
(ii) if such Borrowing is to be for a LIBOR RateSOFR Rate Loan, 1:00 p.m. Administrative Borrower shall deliver to Lender a Request for Borrowing not later than noon Pacific time on the date that is two (Pacific Time) at least one (12) Eurodollar Business Day Days before the date the LIBOR RateSOFR Loan is to be maderequested Funding Date, and such Request for Borrowing shall specify (among other things) that a LIBOR RateSOFR Rate Loan is requested and state the amount and the initial Interest Period thereof applicable thereto (subject to the provisions of this Article II); provided, however, that no Loan shall be available as a LIBOR RateSOFR Rate Loan when any Unmatured Event of Default or Event of Default has occurred and is continuing. If the Administrative Borrower fails to designate a Loan as a LIBOR RateSOFR 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 RateSOFR Rate Loan, the Borrowers each Borrower shall indemnify, defend, and hold Agent and the Lenders Lender harmless against any loss, cost, or expense incurred by Agent or any Lender as a result of (a) the payment of any principal prepayment of any LIBOR RateSOFR Rate Loan on any day other than on the last day of an the Interest Period applicable thereto (including as a result of an Event of Default), (b) the conversion of any LIBOR RateSOFR Rate Loan on any day 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 Rate Loan on the date specified in any LIBOR NoticeRequest Request for Borrowing or Request for Conversion/Continuation notice of prepayment, as applicable, 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 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 (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 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)(ii2.7(b) (which certificate shall include Lender’s calculations of such amount or amounts) 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 Rate Loan is received by Agent Lender not later than 10:00 a.m. or 1:00 p.m. (noon Pacific Time)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. (noon Pacific Time), as applicabletime, 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) The initial Request for Borrowing shall include certification by a Responsible Officer of Administrative Borrower that each of the conditions in Article III have been satisfied or waived. Each Request for Borrowing delivered to Lender thereafter shall specify, among other information, the intended use include a certificate by a Responsible Officer 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 Administrative Borrower 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 3.2 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 satisfied 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 Revolver Commitment shall be deemed to be zero; provided, that the 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 Non-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. 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 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 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 (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 (Silvercrest Asset Management Group Inc.)