Calculation of Borrowing Base For purposes of this Agreement, the “Borrowing Base” shall be determined, as at any date of determination, as the sum of the Advance Rates of the Value of each Portfolio Investment (excluding any Cash Collateral held by the Administrative Agent pursuant to Section 2.05(k) or the last paragraph of Section 2.09(a)); provided that:
(a) the Advance Rate applicable to that portion of the aggregate Value of the Portfolio Investments in a consolidated group of corporations or other entities (collectively, a “Consolidated Group”), in accordance with GAAP, that exceeds 10% of Shareholders’ Equity of the Borrower (which, for purposes of this calculation shall exclude the aggregate amount of investments in, and advances to, Financing Subsidiaries) shall be 50% of the Advance Rate otherwise applicable; provided that, with respect to the Portfolio Investments in a single Consolidated Group designated by the Borrower to the Administrative Agent such 10% figure shall be increased to 12.5%;
(b) the Advance Rate applicable to that portion of the aggregate Value of the Portfolio Investments of all issuers in a Consolidated Group exceeding 20% of Shareholders’ Equity of the Borrower (which, for purposes of this calculation shall exclude the aggregate amount of investments in, and advances to, Financing Subsidiaries) shall be 0%;
(c) the Advance Rate applicable to that portion of the aggregate Value of the Portfolio Investments in any single Industry Classification Group that exceeds 20% of Shareholders’ Equity of the Borrower (which for purposes of this calculation shall exclude the aggregate amount of investments in, and advances to, Financing Subsidiaries) shall be 0%; provided that, with respect to the Portfolio Investments in a single Industry Classification Group from time to time designated by the Borrower to the Administrative Agent such 20% figure shall be increased to 30% and, accordingly, only to the extent that the Value for such single Industry Classification Group exceeds 30% of the Shareholders’ Equity shall the Advance Rate applicable to such excess Value be 0%;
(d) no Portfolio Investment may be included in the Borrowing Base unless the Collateral Agent maintains a first priority, perfected Lien (subject to Permitted Liens) on such Portfolio Investment and such Portfolio Investment has been Delivered (as such term is used in and to the extent required under Section 7.01(a) of the Guarantee and Security Agreement) to the Collateral Agent, and then only for so long as such Portfolio Investment continues to be Delivered as contemplated therein;
(e) the portion of the Borrowing Base attributable to Performing Non-Cash Pay High Yield Securities, Performing Non-Cash Pay Mezzanine Investments, Equity Interests and Non-Performing Portfolio Investments shall not exceed 20%;
(f) the portion of the Borrowing Base attributable to Equity Interests shall not exceed 10% (it being understood that in no event shall Equity Interests of Financing Subsidiaries be included in the Borrowing Base);
(g) the portion of the Borrowing Base attributable to Non-Performing Portfolio Investments shall not exceed 15% and the portion of the Borrowing Base attributable to Portfolio Investments that were Non-Performing Portfolio Investments at the time such Portfolio Investments were acquired shall not exceed 5%; and
(h) the portion of the Borrowing Base attributable to Portfolio Investments invested outside the United States, Canada, the United Kingdom, Australia, Germany, France, Belgium, the Netherlands, Luxembourg, Switzerland, Denmark, Finland, Norway and Sweden shall not exceed 5% without the consent of the Administrative Agent. As used herein, the following terms have the following meanings:
Initial Borrowing Base For the period from and including the Closing Date to but excluding the first Redetermination Date, the amount of the Borrowing Base shall be $2,250,000,000. Notwithstanding the foregoing, the Borrowing Base may be subject to further adjustments from time to time pursuant to Section 2.14(e), (f) and (g).
Authorization of Borrowing Etc (a) Each Obligor has duly authorized by all necessary corporate action the execution, delivery and performance of the Loan Documents to which it is a party. The execution, delivery and performance by each Obligor of the Loan Documents to which it is a party and the consummation of the transactions contemplated by the Loan Documents to which it is a party do not and will not (i) (A) violate any provision of any law or any governmental rule or regulation or order applicable to or binding on such Obligor, (B) violate any provision of the Certificate or Articles of Incorporation or Bylaws of such Obligor, (C) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any Contractual Obligation of such Obligor or any of its Subsidiaries except to the extent of any such violation, conflict, breach, default, or imposition of Lien (of which no Obligor has Actual Knowledge) which could not reasonably be expected to have a Material Adverse Effect, or (D) result in or require the creation or imposition of any Lien on any of the Collateral (except as permitted in the applicable Collateral Document) or on any other property (except as permitted under Section 5.13 hereof), or (ii) require any approval of stockholders or any approval or consent of any Person under any Contractual Obligation of such Obligor or any of its Subsidiaries, except for such approvals or consents which will have been obtained on or before the Closing Date, except for any such approval or consent under a Contractual Obligation and the failure to obtain which could not reasonably be expected to result in a Material Adverse Effect.
(b) The execution, delivery and performance by each Obligor of the Loan Documents to which it is a party and the consummation of the transactions contemplated by the Loan Documents to which it is a party and the use of the proceeds of the Loans do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other Governmental Authority or regulatory body or any other Person which is required to be obtained or made on or prior to the Closing Date and which has not previously been obtained or made.
(c) Each Obligor has duly executed and delivered each of the Loan Documents to which it is party and each such Loan Document is the legally valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws relating to or affecting the enforcement of creditors' rights generally, including materiality, reasonableness, good faith and fair dealing, and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).
(d) No part of the proceeds of the Loans will be used, directly or indirectly, for any purpose that entails a violation of Regulations U or X of the Federal Reserve Board.
Location of Borrower The Borrower's place of business (or, if the Borrower has more than one place of business, its chief executive office) is located at the address listed under the Borrower's signature on this Agreement.
Manner of Borrowing Each Borrowing hereunder shall be made by a single Borrower (it being understood and agreed that any Qualified Borrower’s Obligations shall be guaranteed by the Initial Borrower in accordance with Section 2.9 hereof). The applicable Borrower shall give the Administrative Agent notice at the Agency Services Address of the date of each requested Borrowing hereunder, which notice may be by telephone, if confirmed in writing, facsimile, electronic mail, or other written communication substantially in the form of Exhibit E attached hereto (a “Request for Borrowing”). Each Request for Borrowing: (a) shall be furnished to the Administrative Agent no later than the Specified Time; and (b) must specify: (i) the amount of such Borrowing; (ii) the Interest Option; (iii) in the case of a request for LIBOR Loans, the Interest Period therefor and currency (which shall be, subject to Section 2.2 hereof, US Dollars or an Alternate Currency); and (iv) including a confirmation that such Borrowing will be secured (either directly or indirectly) by a first priority, exclusive security interest and Lien (subject to Permitted Liens), granted to the Secured Parties, in and on 100% of the Unused Commitments of all Investors, which can be satisfied by checking the box next to such confirmation in a Request for Borrowing. If multiple Borrowers are requesting a Borrowing on the same date, then a separate Request for Borrowing shall be submitted by each applicable Borrower (or such Request for borrowing shall specify the respective amounts being requested by each applicable Borrower). Any Request for Borrowing received by the Administrative Agent after the Specified Time shall be deemed to have been given by the applicable Borrower on the next succeeding Business Day. No Request for Borrowing shall be required to be delivered in connection with any Borrowing under Section 2.8(g)(i), 2.9(f), 2.12(b), 3.3(c) or 3.3(d) hereof.
Borrowing Mechanics for Term Loans (i) Lead Borrower shall deliver to Administrative Agent a fully executed Funding Notice no later than (A) if such Funding Notice requests a LIBOR Rate Loan, three (3) Business Days prior to the Closing Date or (B) if such Funding Notice requests a Base Rate Loan, two (2) Business Days prior to the Closing Date, or, in each case, such later date as Administrative Agent may agree. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Lead Borrower shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing. Administrative Agent and Lenders (A) may act without liability upon the basis of written, facsimile, or telephonic notice believed by Administrative Agent in good faith to be from Lead Borrower (or from any Authorized Officer thereof designated in writing purportedly from Lead Borrower to Administrative Agent), (B) shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Term Loan on behalf of Lead Borrower until Administrative Agent receives written notice to the contrary, and (C) shall have no duty to verify the authenticity of the signature appearing on any written Funding Notice.
(ii) Each Lender shall make its Term Loan available to Administrative Agent not later than noon (New York time) on the Closing Date, by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office (as identified on Appendix B). Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Term Loans available to Lead Borrower by the close of business on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited (A) in the case of Loans made on the Closing Date, in accordance with the provisions of the Flow of Funds Agreement or (B) after the Closing Date, to the account of Lead Borrower at Administrative Agent’s Principal Office or to such other account as may be designated in writing to Administrative Agent by Lead Borrower.
Borrowing Agency Provisions (a) Each Borrower hereby irrevocably designates Borrowing Agent to be its attorney and agent and in such capacity to borrow, sign and endorse notes, and execute and deliver all instruments, documents, writings and further assurances now or hereafter required hereunder, on behalf of such Borrower or Borrowers, and hereby authorizes Agent to pay over or credit all loan proceeds hereunder in accordance with the request of Borrowing Agent.
(b) The handling of this credit facility as a co-borrowing facility with a borrowing agent in the manner set forth in this Agreement is solely as an accommodation to Borrowers and at their request. Neither Agent nor any Lender shall incur liability to Borrowers as a result thereof. To induce Agent and Lenders to do so and in consideration thereof, each Borrower hereby indemnifies Agent and each Lender and holds Agent and each Lender harmless from and against any and all liabilities, expenses, losses, damages and claims of damage or injury asserted against Agent or any Lender by any Person arising from or incurred by reason of the handling of the financing arrangements of Borrowers as provided herein, reliance by Agent or any Lender on any request or instruction from Borrowing Agent or any other action taken by Agent or any Lender with respect to this Section 15.1 except due to willful misconduct or gross (not mere) negligence by the indemnified party (as determined by a court of competent jurisdiction in a final and non-appealable judgment).
(c) All Obligations shall be joint and several, and each Borrower shall make payment upon the maturity of the Obligations by acceleration or otherwise, and such obligation and liability on the part of each Borrower shall in no way be affected by any extensions, renewals and forbearance granted to Agent or any Lender to any Borrower, failure of Agent or any Lender to give any Borrower notice of borrowing or any other notice, any failure of Agent or any Lender to pursue or preserve its rights against any Borrower, the release by Agent or any Lender of any Collateral now or thereafter acquired from any Borrower, and such agreement by each Borrower to pay upon any notice issued pursuant thereto is unconditional and unaffected by prior recourse by Agent or any Lender to the other Borrowers or any Collateral for such Borrower’s Obligations or the lack thereof. Each Borrower waives all suretyship defenses.
Disqualification of S-1 Until the earlier of seven years from the date hereof or until the Warrants have either expired and are no longer exercisable or have all been exercised, the Company will not take any action or actions that prevent or disqualify the Company’s use of Form S-1 (or other appropriate form) for the registration of the shares of Common Stock issuable upon exercise of the Warrants under the Act.
Authorization of Borrowing The execution, delivery and performance of the Loan Documents have been duly authorized by all necessary action on the part of each Loan Party that is a party thereto.
Borrowing Base Agent shall have received evidence from Borrowers that the aggregate amount of Eligible Receivables and Eligible Inventory is sufficient in value and amount to support Advances in the amount requested by Borrowers on the Closing Date;
