Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable. (b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded. (c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”). (d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum. (e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum. (f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d). (g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender. (h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan. (i) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. (j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 4 contracts
Samples: Credit Agreement (Regional Management Corp.), Omnibus Amendment (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower Borrower, the Administrative Agent and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank Securities Intermediary thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchaseLoan. In any such case, the Borrower shall give notice of such failure not no later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing proposed Funding Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Regional Management Corp.), Credit Agreement (Regional Management Corp.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchaseLoan. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents each Lender after 12:00 12:01 p.m., New York City time, on any the first Business DayDay prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 12:01 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loansthe requested Loan, the amount of all Loans Outstanding that are Class A Loans a Borrowing Base Deficiency will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Baseexist, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied (or prior to the making of such Loan on the Funding Date will be satisfied as of the proposed Funding Datebe) satisfied. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject Subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior as certified in the Funding Request to 12:00 p.m.the Secured Parties by the Borrower, not later than 4:00 p.m. New York City time, time on the applicable such Funding Date, each Lender shall make its Lender Advance of the requested Loans available to the Borrower by deposit wire transfer of immediately available funds to the Borrower Operating Borrower’s Account. Each Agent Lender shall promptly notify the Borrower and the other Agents Administrative Agent in the event that any Lender in such Agent’s Lender Group either it fails to make such funds available to the Borrower before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gc) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and but the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) ), together with interest thereon at the Default Rate, to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(id) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Warehouse Agreement (Vroom, Inc.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank Securities Intermediary thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing proposed Funding Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.make
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request Notice of Borrowing is delivered to the Administrative Agent and the applicable Agents Lenders after 12:00 1:00 p.m., New York City time, on any Business Day, such Funding Request Notice of Borrowing shall be deemed to be received prior to 12:00 1:00 p.m., New York City time, on the next succeeding Business Day and and, if necessary to comply with the requirements of Section 2.01(b), the proposed Funding Date Borrowing Dates of such proposed Loan shall be deemed to be the second next succeeding Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A proposed Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding DateDates. Any Funding Request Notice of Borrowing shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article FourIII, at or prior to 12:00 4:00 p.m., New York City time, on the applicable Funding DateTime, by deposit of immediately available funds by wire transfer thereof to the Borrower Operating Account. Each Agent shall promptly notify account or accounts which the Borrower has designated to the Administrative Agent and the other Agents Lenders in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)writing.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gc) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four III are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hd) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Borrowing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ie) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jf) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a2.01(b) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Receivables Loan and Security Agreement (Payoneer Global Inc.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described LEGAL02/42338653v2 in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing BaseBase (calculated as of the previous Determination Date or, with respect to the initial Funding Date or any Receivables added or to be added to the Collateral following such Determination Date, but prior to or on such date of determination, the related Cutoff Date), and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article FourFour on the related Funding Date (and, solely with respect to the initial Class B Loan, Section 4.02(b)(ii), on the Class B Initial Funding Date), by initiation of a wire at or prior to 12:00 2:00 p.m., New York City time, on the applicable Funding Date (or, in the case of the initial Class B Loan, on the Class B Initial Funding Date), by deposit of immediately available funds to an account specified by the Borrower Operating AccountBorrower. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lendertime. For the avoidance of doubt, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Class B Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any the initial Class B Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 2:00 p.m., New York City time, on the applicable Funding Date July 22, 2022, such Class B Loan shall instruct each Agent for not constitute a Loan hereunder and such Class B Lender shall not constitute a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annumhereunder.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(fd) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 3:00 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and this Section 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer SouthernCo shall indemnify, jointly and severally indemnify severally, each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and and, except as provided in Section 2.02(d), no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
(i) No portion of any Loan shall be funded (initially or through participation, assignment, transfer or securitization of the Loan) with Plan Assets if it would cause the Borrower to incur prohibited transaction excise tax penalties under Section 4975 of the Code.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing BaseBase (calculated as of the previous Determination Date or, with respect to the initial Funding Date or any Receivables added or to be added to the Collateral following such Determination Date, but prior to or on such date of determination, the related Cutoff Date), and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, by initiation of a wire at or prior to 12:00 2:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to an account specified by the Borrower Operating AccountBorrower. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 3:00 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and this Section 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer First Heritage shall indemnify, jointly and severally indemnify severally, each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and and, except as provided in Section 2.02(d), no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
(i) No portion of any Loan shall be funded (initially or through participation, assignment, transfer or securitization of the Loan) with Plan Assets if it would cause the Borrower to incur prohibited transaction excise tax penalties under Section 4975 of the Code.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchasepurchaseLoan. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If Unless waived by the Administrative Agent and the Lender Group Agents, if any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m.11:00 a.m., New York City time, on any the Business DayDay prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 p.m.11:00 a.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a written representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan Loan, including, without limitation, all of the conditions set forth in Section 2.01(d)(i) through (iv), have been satisfied or will be satisfied as of the proposed Funding Datesatisfied. Any Funding Request shall be irrevocableirrevocable and the Borrower may not request that more than one Loan be funded on any Business Day or more than three (3) Loans be funded in any week.
(b) Each Subject to Section 2.02(e), each Conduit Lender shall notify the Agent for its related Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its all or a portion of the applicable Lender Group Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its any portion of the applicable Lender Group Advance of such Loan. If the a Conduit Lender shall have elected or be deemed to have elected not to make all or a portion of its Lender Group Advance of such Loan, the related Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan applicable Lender Group Advance that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each LenderSubject to Section 2.02(e), each Lender Group’s Lender Group Advance of a Loan shall be mademade available to the Administrative Agent, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m.11:00 a.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Administrative Agent’s Account and the Administrative Agent shall promptly notify make the Borrower and the other Agents in the event that any Lender in proceeds of such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested Advances received by the Borrower pursuant to Section 2.01 (Administrative Agent as of 1:00 p.m., New York City time on the aggregate amount unavailable applicable Funding Date, available to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 at or prior to 2:00 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting GroupBorrower’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annumAccount.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(id) The failure of any Committed Lender to make any Loan required to be made by it shall not relieve any other Committed Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for the failure of any other Lender’s failure Lender to make Loans as required.
(j) The Borrower required hereunder, except as otherwise expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth provided in Section 2.01(a2.02(e) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder2.18(a) hereof.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and or the applicable Agents after 12:00 p.m., New York City time, on any one Business DayDay prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied (or prior to the making of such Loan on the Funding Date will be satisfied as of the proposed Funding Datebe) satisfied. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Such Agent shall then notify each Liquidity Provider for such Conduit Lender by 11:00 a.m., New York City time, on the applicable Funding Date if such Conduit Lender has not elected to advance its entire Lender Percentage of the Loan, which notice shall have elected or be deemed to have elected not to make its Lender Advance specify (i) the identity of such LoanConduit Lender, (ii) the Committed portion of the Loan that such Conduit Xxxxxx has not elected to advance as provided above and (iii) the respective Liquidity Percentages of such Liquidity Providers on such Funding Date (as determined by such Agent in good faith; for purposes of such determination, such Agent shall be entitled to rely conclusively 300213599v4 on the most recent information provided by such Conduit Lender or its agent or by the agent for its Support Parties). Subject to receiving such notice and to the satisfaction of the applicable conditions set forth in Article Four, each of such Lender Group Conduit Lender’s Liquidity Providers shall make available on the applicable Funding Date in an amount equal to its Liquidity Percentage of the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Accountan account of such Agent. Each Such Agent shall promptly notify the Borrower and the other Agents Administrative Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available to such Agent before such time or notifies such Agent that it will not make such funds available to such Agent before such time time. Subject to (i) such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result Agent’s receipt of such failure being herein called funds and (ii) the “Class A Borrowing Deficit”)fulfillment of the applicable conditions set forth in Article Four, then the Borroweras determined by such Agent, by no such Agent will not later than 1:30 3:00 p.m., New York City time, on the applicable such Funding Date shall instruct each make such funds available, in the same type of funds received, by wire transfer thereof to the Borrower’s Account. If any Lender makes available to the related Agent funds for a any Loan to be made by such Lender Group with a Class A Committed Lender that does as provided in the foregoing provisions of this Article, and such funds are not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately made available funds to the Borrower Operating Account in an amount equal to by such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of Agent because the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for Loan set forth in Article Four are not satisfied or waived in accordance with the ratable benefit of the Lenders terms hereof, such Agent shall return such funds (in the Class A Non-Defaulting Groups all amounts paid by each like funds as received from such Lender in the Class A Non-Defaulting Groups on behalf of Lender) to such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annumwithout interest.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(fd) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower Agent for its Lender Group when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchaseadvance. In any such case, the Borrower such Agent shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agenteach Liquidity Provider for such Conduit Lender, the Committed Lender for such Lender Group Administrative Agent and to the Administrative AgentBorrower, which notice shall specify (i) the identity of such Conduit Lender and Lender, (ii) the amount of the Lender Advance which it had elected but failed to makemake and (iii) the respective Liquidity Percentages of such Liquidity Providers on such Funding Date (as determined by such Agent in good faith; for purposes of such determination, such Agent shall be entitled to rely conclusively on the most recent information provided by such Conduit Lender or its agent or by the agent for its Support Parties). Subject to receiving such notice, each of such Committed Lender Conduit Lender’s Liquidity Providers shall advance a portion of the Principal Amount in an amount equal to its Liquidity Percentage of the amount described in clause (ii) above, at or before 4:00 2:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available . Subject to the Borrower such Agent’s receipt of such funds, such Agent will not later than 3:00 p.m., New York City time, on such Funding Date make such funds for any Loan to be made by such Lender as provided available, in the provisions same type of Sections 2.01 and 2.02funds received, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due by wire transfer thereof to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(i) Account. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders 300213599v4 are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Warehouse Agreement (Vroom, Inc.)
Funding Mechanics. DB1/ 139452285.4144571789.3 48 (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 3:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following the date of such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s 's Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Section 2.01 and Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Administrative Agent's Account. Each The Administrative Agent shall promptly notify the Borrower and the other Agents related Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred time. Subject to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Section 2.01 and Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date and otherwise make all such funds deposited to the Administrative Agent's Account by the Agents available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower's Account. If any Lender Group makes available to the Borrower Administrative Agent funds for any Loan to be made by such Lender Group as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Section 2.01 and Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower Administrative Agent shall return such funds (in like funds as received from such Lender) to the related Agent for such LenderLender Group, without interest.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders Lender Groups are several and no Lender Group shall be responsible for any other Lender’s Lender Group's failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described 50 in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described LEGAL02/41783784v7 LEGAL02/42659596v2 in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Deal Agent and the applicable Agents after 12:00 2:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 2:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Datesatisfied. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article FourIV, at or prior to 12:00 p.m.noon, New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Accountan account of such Agent. Each Such Agent shall promptly notify the Borrower and the other Agents Deal Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available to such Agent before such time or notifies such Agent that it will not make such funds available to such Agent before such time time. Subject to (i) such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result Agent’s receipt of such failure being herein called funds and (ii) the “Class A Borrowing Deficit”)fulfillment of the applicable conditions set forth in Article IV, then the Borroweras determined by such Agent, by no such Agent will not later than 1:30 12:30 p.m., New York City time, on such Funding Date make such funds available, in the same type of funds received, by wire transfer thereof to the Deal Agent’s Account. Subject to (i) the Deal Agent’s receipt of such funds and (ii) the fulfillment of the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds conditions set forth in Article IV, as certified to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon Deal Agent, the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event Deal Agent will not later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise make such funds available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower’s Account. If any Lender makes available to the Borrower Deal Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Deal Agent because the conditions to the applicable Loan set forth in Article Four IV are not satisfied or waived in accordance with the terms hereof, the Borrower Deal Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Investment Agreement (Santander Holdings USA, Inc.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be mademade available to the Administrative Agent, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City Charlotte, North Carolina time, on the applicable Funding Closing Date, in the case of the Initial Loan, or on the Effective Date, in the case of the Effective Date Loan, by deposit of immediately available funds to the Borrower Operating Accountdepository account or account of the Administrative Agent. Each Agent shall promptly notify Subject to (i) the Borrower and the other Agents in the event that any Lender in such Administrative Agent’s Lender Group either fails to make receipt of such funds available before such time or notifies such Agent that it will not make such funds available before such time and (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(dii) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and as certified to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 1:00 p.m., New York City Charlotte, North Carolina time, on the Closing Date or the Effective Date, as the case may be, make such Funding funds available, in the same type of funds received, by wire transfer of immediately available funds to such depository account as shall be specified by the Borrower in writing to the Administrative Agent and the Lenders at least one Business Day prior to the Closing Date and otherwise in accordance with Section 2.01(d).
(g) or the Effective Date, as the case may be. If any Lender makes available to the Borrower Administrative Agent funds for any the related Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable such Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(hb) If any either Loan is not made or effectuated, as the case may be, effectuated due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the related Loan on the Closing Date or the Effective Date, as the case may be, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan Lender Advance required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments obligations of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make the Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request The Term Loan Exchange shall be deemed to be received prior to 12:00 p.m., New York City time, on consummated in accordance with the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all terms of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocableMaster Assignment and Assumption Agreement.
(b) Each Conduit Lender Purchaser (other than the Third Amendment Note Purchasers) shall notify the Agent for its Lender Group and the Administrative Agent purchase each First Amendment Note, Delayed Draw Note, Second Amendment Delayed Draw Note, Delayed Draw Note or Additional Note to be purchased by 10:00 a.m., New York City time, it hereunder on the applicable Funding Date whether it has elected proposed date thereof by wire transfer of immediately available funds by 1:00 p.m. to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case account of the Credit Suisse Lender Group, each Conduit Lender Purchaser Representative most recently designated by it for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written purpose by notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, Purchasers in an amount equal to its share such Purchaser’s respective Applicable Percentage of the Principal Amount applicable First Amendment Note, Delayed Draw Note, Second Amendment Delayed Draw Note, Delayed Draw Notes or Additional Notes. The Purchaser Representative will make the proceeds of such purchases available to be fundedthe Issuer by promptly crediting the amounts so received on the same Business Day, in like funds, to the account designated by the Issuer. Notwithstanding the foregoing, any Purchaser may make the proceeds of any First Amendment Note, Delayed Draw Note, Second Amendment Delayed Draw Note, Delayed Draw Note or Additional Note directly available to the Issuer in accordance with such instructions as the Issuer may specify to such Purchaser in writing on or prior to the applicable date of funding and the Issuer or the applicable Purchaser shall notify the Purchaser Representative of the Purchaser’s election on the Business Day prior to any such funding.
(c) Each Lender’s Lender Advance of a Loan Third Amendment Note Purchaser shall purchase each Third Amendment Note to be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, purchased by it hereunder on the applicable Funding Date, proposed date thereof by deposit disbursement of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum purchase price of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails Third Amendment Notes to fund its ratable portion of any Loan requested be purchased by such Third Amendment Note Purchaser from the Borrower pursuant to Section 2.01 (Third Amendment Escrow Account in accordance with the aggregate amount unavailable to the Borrower as a result Third Amendment Escrow Agreement. The proceeds of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date Third Amendment Note shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was be made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required Issuer by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount way of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived release thereof in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such LoanThird Amendment Escrow Agreement.
(i) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Note Purchase Agreement (ATI Physical Therapy, Inc.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchasepurchaseLoan. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 3:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following the date of such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s 's Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Administrative Agent's Account. Each The Administrative Agent shall promptly notify the Borrower and the other Agents related Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred time. Subject to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date and otherwise make all such funds deposited to the Administrative Agent’s Account by the Agents available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower's Account. If any Lender Group makes available to the Borrower Administrative Agent funds for any Loan to be made by such Lender Group as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.51
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders Lender Groups are several and no Lender Group shall be responsible for any other Lender’s Lender Group's failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 3:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.51
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s 's Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Administrative Agent's Account. Each The Administrative Agent shall promptly notify the Borrower and the other Agents related Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred time. Subject to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date and otherwise make all such funds deposited to the Administrative Agent’s Account by the Agents available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower's Account. If any Lender Group makes available to the Borrower Administrative Agent funds for any Loan to be made by such Lender Group as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower Administrative Agent shall return such funds (in like funds as received from such Lender) to the related Agent for such LenderLender Group, without interest.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders Lender Groups are several and no Lender Group shall be responsible for any other Lender’s Lender Group's failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 3:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following the date of such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s 's Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Administrative Agent's Account. Each The Administrative Agent shall promptly notify the Borrower and the other Agents related Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred time. Subject to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).the
(g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders Lender Groups are several and no Lender Group shall be responsible for any other Lender’s Lender Group's failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank Securities Intermediary thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing proposed Funding Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described LEGAL02/41783784v7 in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 3:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following the date of such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
. DB1/ 139452285.4 48 154304283v7 (b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s 's Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Section 2.01 and Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Administrative Agent's Account. Each The Administrative Agent shall promptly notify the Borrower and the other Agents related Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred time. Subject to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Section 2.01 and Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date and otherwise make all such funds deposited to the Administrative Agent's Account by the Agents available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower's Account. If any Lender Group makes available to the Borrower Administrative Agent funds for any Loan to be made by such Lender Group as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Section 2.01 and Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by related Agent for such Lender to fund or maintain such LoanGroup, without interest.
(i) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described LEGAL02/4049656702/41783784v137 LEGAL02/40496567v15 LEGAL02/41254404v5 LEGAL02/42659188v3 in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 4:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 4:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed (A) the Available AmountAmount or (B) the Aggregate Commitment, (ii) after giving effect to such Loans, the amount of less all Loans Outstanding that are Class A Loans will not exceed (or on or after the Class A Borrowing BaseA-1 Commitment Termination Date, and the aggregate amount of less all Class A‑2 Loans Outstanding will not exceed the Total Borrowing BaseOutstanding), and (iiiii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Datesatisfied. Any Funding Request shall be irrevocableirrevocable and the Borrower may not request that more than one Loan be funded on any Business Day or more than two Loans be funded in any week.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the a Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date in an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be mademade available to the Administrative Agent, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to an account of the Borrower Operating AccountAdministrative Agent. Each The Administrative Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lendertime. Subject to the fulfillment of the applicable conditions set forth in Article Four, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested determined by the Borrower pursuant to Section 2.01 (Administrative Agent, the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no Administrative Agent will not later than 1:30 3:00 p.m., New York City time, on the applicable such Funding Date shall instruct each make such funds available, in the same type of funds received, by wire transfer thereof to the Borrower’s Account. If any Lender makes available to the Administrative Agent funds for a any Loan to be made by such Lender Group with a Class A Committed Lender that does as provided in the foregoing provisions of this Article, and such funds are not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately made available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon by the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of Administrative Agent because the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for Loan set forth in Article Four are not satisfied or waived in accordance with the ratable benefit of terms hereof, the Lenders Administrative Agent shall return such funds (in the Class A Non-Defaulting Groups all amounts paid by each like funds as received from such Lender in the Class A Non-Defaulting Groups on behalf of Lender) to such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annumwithout interest.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(fd) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four hereof with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower Administrative Agent when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower Administrative Agent shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative AgentBorrower, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such the Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 2:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available . Subject to the Borrower Administrative Agent’s receipt of such funds, the Administrative Agent will not later than 4:00 p.m., New York City time, on such Funding Date make such funds for any Loan to be made by such Lender as provided available, in the provisions same type of Sections 2.01 and 2.02funds received, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due by wire transfer thereof to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such LoanAccount.
(ie) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Investment Agreement (Santander Holdings USA, Inc.)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Lxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower Borrower, the Administrative Agent and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank Securities Intermediary thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchaseLoan. In any such case, the Borrower shall give notice of such failure not no later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing proposed Funding Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing BaseBase (calculated as of the previous Determination Date or, and with respect to the aggregate amount initial Funding Date or any Receivables added or to be added to the Collateral following such Determination Date, but prior to or on such date of all Loans Outstanding will not exceed determination, the Total Borrowing Baserelated Cutoff Date), and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded[Reserved].
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article FourFour on the related Funding Date, by initiation of a wire at or prior to 12:00 5:00 p.m., New York City time, on the applicable Funding Date, Date by deposit of immediately available funds to an account specified by the Borrower Operating AccountBorrower. Each The Administrative Agent shall promptly notify the Borrower and the other Agents Lenders in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum[Reserved].
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and this Section 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer SouthernCo shall indemnify, jointly and severally indemnify severally, each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and and, except as provided in Section 2.02(d), no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
(i) No portion of any Loan shall be funded (initially or through participation, assignment, transfer or securitization of the Loan) with Plan Assets if it would cause the Borrower to incur prohibited transaction excise tax penalties under Section 4975 of the Code.
(j) The Borrower shall use commercially reasonable efforts to deliver to the Administrative Agent, two (2) Business Days prior to the end of each calendar month during the Revolving Period, a report setting forth the aggregate amount of Loans the Borrower anticipates requesting from the Lenders during the following calendar month. Such report shall be based on the reasonable projections of the Borrower and shall neither (x) obligate the Borrower to request Loans in amounts equal to those set forth in any such report, nor (y) limit the ability of Borrower to request additional Loans in excess of the amounts set forth in any such report.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 3:00 p.m., New York City time, on any two Business DayDays prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 3:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following the date of such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s 's Lender Advance of a Loan shall be mademade available to the Agent for its Lender Group, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Administrative Agent's Account. Each The Administrative Agent shall promptly notify the Borrower and the other Agents related Agent in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such the Administrative Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred time. Subject to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date and otherwise make all such funds deposited to the Administrative Agent'sAgent’s Account by the Agents available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower's Account. If any Lender Group makes available to the Borrower Administrative Agent funds for any Loan to be made by such Lender Group as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower Administrative Agent shall return such funds (in like funds as received from such Lender) to the related Agent for such LenderLender Group, without interest.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ic) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders Lender Groups are several and no Lender Group shall be responsible for any other Lender’s Lender Group's failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Loan Agreement (Lithia Motors Inc)
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group GIFS Cpaital Company, LLC shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the a Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(i) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Xxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described LEGAL02/42658427v2 in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any one Business DayDay prior to the proposed Funding Date, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans Loan will not, on the related Funding Date, exceed the Available Amount, Amount and (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied (or prior to the making of such Loan on the Funding Date will be satisfied as of the proposed Funding Datebe) satisfied. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded[Reserved].
(c) Each Lender’s Lender Advance of a Loan shall be mademade available to the Administrative Agent, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 1:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to an account of the Borrower Operating AccountAdministrative Agent. Each The Administrative Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available to the Administrative Agent before such time or notifies such the Administrative Agent that it will not make such funds available to the Administrative Agent before such time time. Subject to (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(di) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result Administrative Agent’s receipt of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender funds and (a “Class A Non-Defaulting Group”ii) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a LoanFour, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required as determined by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 Administrative Agent will not later than 3:00 p.m., New York City time, on such Funding Date and otherwise make such funds available, in accordance with Section 2.01(d).
(g) the same type of funds received, by wire transfer thereof to the Borrower’s Account. If any Lender makes available to the Borrower Administrative Agent funds for any Loan to be made by such Lender Xxxxxx as provided in the foregoing provisions of Sections 2.01 and 2.02this Article, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(hd) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(i) [Reserved]. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(j) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Warehouse Agreement (Vroom, Inc.)
Funding Mechanics. Each Lender shall, before 3:30 p.m. (aCharlotte time) If any Funding Request is delivered on the date of such borrowing, make available to the Administrative Agent and the applicable Agents after 12:00 p.m.at its address referred to in Schedule 1.1(a), New York City time, on any Business Dayin --------------- immediately available funds, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date Lender's ratable portion of such proposed Loan shall be deemed to be borrowings. Promptly after the second Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making Administrative Agent's receipt of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group fund and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the upon fulfillment of the applicable conditions set forth in Article FourParagraph 2, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Administrative Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to will make such funds available before ----------- to the Borrowers by depositing the same in an account of the Borrowers maintained with the Administrative Agent and designated by the Borrowers in the relevant notice of borrowing. Unless the Administrative Agent shall have received notice from a Lender prior to the date of any borrowing that such time or notifies such Agent that it Lender will not make such funds available, the Administrative Agent may assume that such Lender has made such portion available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Administrative Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such requestborrowing in accordance with the terms hereof and the Administrative Agent may, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based reliance upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative such assumption make available to the Class A Aggregate Commitment less Borrowers on such date a corresponding amount. If and to the Commitment of extent that such Lender shall not have made its ratable portion available to the Class A Defaulting Group) of Administrative Agent, such Lender and the Class A Borrowing Deficit; Borrowers severally agree to repay to the Administrative Agent forthwith on demand (provided, however, that, for the avoidance of doubt, no that such demand shall be first made to such Lender shall have any obligation prior to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay demand being made to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each Borrowers) such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, corresponding amount together with interest thereon, for each day from the date a payment was such amount is made by available to the Lenders in the Class A Non-Defaulting Groups Borrowers until the date such Lenders have been paid such amounts in full, at a rate per annum equal amount is repaid to the sum Administrative Agent at (i) in the case of the Base Rate plus 1.00% per annum.
Borrowers, the interest rate otherwise applicable to Loans and (eii) in the case of a Lender the Federal Funds Rate. If any such Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails shall repay to fund its ratable the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's portion of any the Loan so requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of and such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender Loan shall be deemed to have rescinded its election to make been made by such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for date when such Lender Group and amount is repaid to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make). Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(g) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(h) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(i) The failure of any Lender to make any its portion of a Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; providedobligation hereunder to make its portion of a Loan, that the Commitments of the Lenders are several and but no Lender shall be responsible for the failure of any other Lender’s failure Lender to make Loans as required.
(jits portion of any Loan. Nothing in the Paragraph 1(c) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above -------------- shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to relieve any Lender funding from its obligation to fulfill its Commitment hereunder or to prejudice any other Loan rights the Borrowers may have against such Lender as a result of such Lender's failure to fulfill such Commitment hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, Base and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”)time.
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchase. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(ge) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hf) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ig) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(jh) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Funding Mechanics. (a) If any Funding Request is delivered to the Administrative Agent and the applicable Agents after 12:00 p.m., New York City time, on any Business Day, such Funding Request shall be deemed to be received prior to 12:00 p.m., New York City time, on the next succeeding Business Day and the proposed Funding Date of such proposed Loan shall be deemed to be the second next Business Day following such deemed receipt. Each Funding Request shall include a representation by the Borrower that (i) the requested Loans will not, on the related Funding Date, exceed the Available Amount, (ii) after giving effect to such Loans, the amount of all Loans Outstanding that are Class A Loans will not exceed the Class A Borrowing Base, and the aggregate amount of all Loans Outstanding will not exceed the Total Borrowing Base, and (iii) a representation that all of the conditions precedent to the making of such Loan have been satisfied or will be satisfied as of the proposed Funding Date. Any Funding Request shall be irrevocable.
(b) Each Conduit Lender shall notify the Agent for its Lender Group and the Administrative Agent by 10:00 a.m., New York City time, on the applicable Funding Date whether it has elected to make its Lender Advance offered to it pursuant to Section 2.01; provided, that in the case of the Credit Suisse Lender Group, each Conduit Lender for the Credit Suisse Lender Group shall be deemed to have notified the Credit Suisse Agent and the Administrative Agent that it has elected to make its Lender Advance on such Funding Date unless written notice not to make such Lender Advance was given to the Credit Suisse Agent and the Administrative Agent by 10:00 a.m., New York City time, on such Funding Date. In the event that a Conduit Lender shall not have timely provided such notice, such Conduit Lender shall be deemed to have elected not to make its Lender Advance of such Loan. If the Conduit Lender shall have elected or be deemed to have elected not to make its Lender Advance of such Loan, the Committed Lender in such Lender Group shall make available on the applicable Funding Date an amount equal to the portion of the Loan that each such Conduit Lender Lxxxxx has not elected to fund, in an amount equal to its share of the Principal Amount to be funded.
(c) Each Lender’s Lender Advance of a Loan shall be made, subject to the fulfillment of the applicable conditions set forth in Article Four, at or prior to 12:00 p.m., New York City time, on the applicable Funding Date, by deposit of immediately available funds to the Borrower Operating Account. Each Agent shall promptly notify the Borrower and the other Agents in the event that any Lender in such Agent’s Lender Group either fails to make such funds available before such time or notifies such Agent that it will not make such funds available before such time (such Lender, if a Committed Lender, shall be referred to herein as a “Defaulting Lender”).
(d) If any Lender Group containing a Defaulting Lender that is a Class A Committed Lender (a “Class A Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class A Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class A Committed Lender that does not include a Defaulting Lender (a “Class A Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class A Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit and shall notify the Account Bank thereof. Each Class A Committed Lender in a Class A Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class A Non-Defaulting Group relative to the Class A Aggregate Commitment less the Commitment of the Class A Defaulting Group) of the Class A Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class A Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class A Non-Defaulting Groups all amounts paid by each such Lender in the Class A Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class A Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(e) If any Lender Group containing a Defaulting Lender that is a Class B Committed Lender (a “Class B Defaulting Group”) fails to fund its ratable portion of any Loan requested by the Borrower pursuant to Section 2.01 (the aggregate amount unavailable to the Borrower as a result of such failure being herein called the “Class B Borrowing Deficit”), then the Borrower, by no later than 1:30 p.m., New York City time, on the applicable Funding Date shall instruct each Agent for a Lender Group with a Class B Committed Lender that does not include a Defaulting Lender (a “Class B Non-Defaulting Group”) to make Loans by deposit of immediately available funds to the Borrower Operating Account in an amount equal to such Class B Non-Defaulting Group’s proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit and shall notify the Account Bank thereof. Each Class B Committed Lender in a Class B Non-Defaulting Group shall use commercially reasonable efforts to fund on the date of such request, but in any event no event later than 1:00 p.m., New York City time, on the Non-Defaulting Group Funding Date shall fund, its proportionate share (based upon the Commitment of the Committed Lender(s) in each Class B Non-Defaulting Group relative to the Class B Aggregate Commitment less the Commitment of the Class B Defaulting Group) of the Class B Borrowing Deficit; provided, however, that, for the avoidance of doubt, no Lender shall have any obligation to fund any such Advance unless each of the conditions precedent stated therefor in Section 2.01(b) and Section 2.01(d) is satisfied after giving effect thereto. The Class B Committed Lender that is the Defaulting Lender shall forthwith, upon demand, pay to the applicable Agents for the ratable benefit of the Lenders in the Class B Non-Defaulting Groups all amounts paid by each such Lender in the Class B Non-Defaulting Groups on behalf of such Defaulting Lender, together with interest thereon, for each day from the date a payment was made by the Lenders in the Class B Non-Defaulting Groups until the date such Lenders have been paid such amounts in full, at a rate per annum equal to the sum of the Base Rate plus 1.00% per annum.
(f) In the event that, notwithstanding the fulfillment of the applicable conditions set forth in Article Four with respect to a Loan, a Conduit Lender elected to make an advance on a Funding Date but failed to make its Lender Advance available to the Borrower when required by Section 2.02(c), such Conduit Lender shall be deemed to have rescinded its election to make such advance, and neither the Borrower nor any other party shall have any claim against such Conduit Lender by reason of its failure to timely make such purchaseLoan. In any such case, the Borrower shall give notice of such failure not later than 1:30 p.m., New York City time, on the Funding Date to the related Agent, the Committed Lender for such Lender Group and to the Administrative Agent, which notice shall specify (i) the identity of such Conduit Lender and (ii) the amount of the Lender Advance which it had elected but failed to make. Subject to receiving such notice, such Committed Lender shall advance a portion of the Principal Amount in an amount equal to the amount described in clause (ii) above, at or before 4:00 p.m., New York City time, on such Funding Date and otherwise in accordance with Section 2.01(d).
(gf) If any Lender makes available to the Borrower funds for any Loan to be made by such Lender as provided in the provisions of Sections 2.01 and 2.02, and the conditions to the applicable Loan set forth in Article Four are not satisfied or waived in accordance with the terms hereof, the Borrower shall return such funds (in like funds as received from such Lender) to such Lender.
(hg) If any Loan is not made or effectuated, as the case may be, due to the Borrower’s failure to satisfy, or continue to satisfy, the conditions to fund the Loan on the Closing Date, the Borrower and the Servicer shall jointly and severally indemnify each Lender against any reasonable loss, cost or expense incurred by such Lender, including any loss (including loss of anticipated profits, net of anticipated profits in the reemployment of such funds in the manner determined by such Lender), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund or maintain such Loan.
(ih) The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided, that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.
(ji) The Borrower expressly acknowledges and agrees that any election by any Lender, in its sole discretion, on one or more occasion to fund any Loan on any day prior to the final passage of the applicable notice period set forth in Section 2.01(a) above shall not constitute or be deemed to be an amendment, waiver or other modification of the requirement for such notice prior to any Lender funding any other Loan hereunder.
Appears in 1 contract
Samples: Credit Agreement and Account Control Agreement (Regional Management Corp.)
