Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower to the Agent not later than 11:00 A.M. (New York City time) on the Business Day prior to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower no later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor and (v) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof. (b) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (New York City time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to such Borrower at the aforesaid applicable Payment Office. (c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date. (d) Unless the Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower that such Lender will not make available to the Agent such Lender’s Ratable Portion of such Borrowing, the Agent may assume that such Lender has made such Ratable Portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 and the Agent may, in reliance upon such assumption, make available to such Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder. (e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) Each As a condition precedent to borrowing of the Loans hereunder, the Borrower shall give the Administrative Agent a notice of borrowing (xthe “Notice of Borrowing”) Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower or prior to the Closing Day (which notice must be received by the Administrative Agent not later than 11:00 A.M. prior to 10:00 a.m. (New York City time) on the Business Day prior Closing Date), and the Administrative Agent shall give to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower no later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of such proposed Borrowingeach Lender prompt notice thereof. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period by telephone, confirmed immediately in writing, or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be telecopier or telex in substantially the form of Exhibit BB hereto, specifying therein the requested (i) the date of such proposed BorrowingClosing Date, (ii) Type of Loans comprising the borrowing and the aggregate amount of such proposed Borrowingthe borrowing, (iii) the currency of such proposed Revolving Credit Loans, remittance instructions and (iv) in the case of a proposed Borrowing in Dollarsborrowing consisting of Eurodollar Rate Loans, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor and (v) for each such Loan. If no election as to Type of Loans is specified in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, then the applicable interest rate under Section 2.9(b)Loans shall be Alternate Base Rate Loans. If no Interest Period with respect to Eurodollar Rate Loans is specified in the Notice of Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month duration. Each Lender shallshall on the date requested by the Borrower, before 11:00 A.M. (New York City time) on ), in the date case of a borrowing to be comprised of Eurodollar Rate Loans, and before 1:00 P.M. (New York City time), in the proposed Borrowing by any Borrowercase of a borrowing to be comprised of Alternate Base Rate Loans, make available for the account of its Applicable Lending Office to the Administrative Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and Administrative Agent’s Account, in immediately available same day funds, such Lender’s ratable portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in such Alternative Currencyborrowing. After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IIISection 3.01, the Administrative Agent will make such funds available to such the Borrower at in the aforesaid applicable Payment Officemanner specified by the Borrower in the Notice of Borrowing.
(b) Anything in subsection (a) above to the contrary notwithstanding, the Borrower may not select Eurodollar Rate Loans for the borrowing if the obligation of the Lenders to make Eurodollar Rate Loans shall then be suspended pursuant to Section 2.09 or 2.13 (and the borrowing shall be deemed to be comprised of Alternate Base Rate Loans).
(c) Each The Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such NoticeBorrower. If any the Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative CurrencyEurodollar Rate Loans, such the Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure by the Borrower to fulfill on or before the date specified in such the Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article IIISection 3.01, including, without limitation, including any loss (including, without limitation, loss of anticipated profits)loss, cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency the Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowingborrowing, when such Loan, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received written notice from a Lender prior to the date of any proposed Borrowing by any Borrower the borrowing that such Lender will not make available to the Administrative Agent such Lender’s Ratable Portion ratable portion of such Borrowingthe borrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion portion available to the Administrative Agent on the date of such Borrowing the borrowing in accordance with subsection (a) of this Section 2.3 2.02 and the Administrative Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion ratable portion available to the Administrative Agent, such Lender and such the Borrower severally agree to repay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such the Borrower until the date such amount is repaid to the Administrative Agent, at (i) in the case of such the Borrower, the interest rate applicable at the such time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds RateRate for the first three days and Alternate Base Rate thereafter. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing the borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing the borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowingthe borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowingthe borrowing.
Appears in 1 contract
Sources: Credit Agreement (Aquila Inc)
Making Loans. (a) The Borrower hereby requests an initial Loan in the principal amount of $130,357,302.35 to be made on the Closing Date (the “Initial Loan”) as contemplated in Section 5.03, the proceeds of which shall be retained by the Lenders as contemplated in such Section 5.03. Each (x) Borrowing comprised of Base Rate Loans other Loan hereunder shall be made on notice, given by a at least five (5) days’ prior written request from the Borrower to the Administrative Agent not and each Group Agent in the form of a Loan Request attached hereto as Exhibit A. Each such request for a Loan shall be made no later than 11:00 A.M. a.m. (New York City time) on a Business Day (it being understood that any such request made after such time shall be deemed to have been made on the following Business Day) and shall specify (i) the amount of the Loan(s) requested (which shall not be less than $1,000,000 and shall be an integral multiple of $100,000), (ii) the account to which the proceeds of such Loans shall be distributed, (iii) the date such requested Loan is to be made (which shall be a Business Day and a Settlement Date) (a “Borrowing Date”), (iv) a detailed list of the Receivables, if any, proposed to be sold to the Borrower on such proposed Borrowing Date, including in respect of each Receivable the name and Billing Address of the related Obligor (or the identification number or code of such Obligor, provided that it includes the State (or commonwealth) in the United States in respect of such Billing Address), the account number or Contract identification number, the Remaining Term, the ADT Credit Score, the Product Type, whether a credit check was completed, the Unpaid Balance, the Financed Unpaid Balance, the aggregate Unpaid Balance of all such Receivables, and such additional detail that the Administrative Agent may from time to time reasonably request, of each Receivable in each case as of the immediately preceding Cut-off Date, and (v) an Information Package in respect of the Settlement Period immediately preceding such proposed Borrowing Date specified in such Loan Request and as of the most recent Cut-off Date and which shall also contain the pro forma information regarding any such proposed Loans required by Section 3.01(c).
(b) Not later than 1:00 pm (New York City time) on the same Business Day prior of its receipt of a Loan Request together with the related Information Package pursuant to the date foregoing clause (a) (it being understood that if any such Loan Request or Information Package is received by the Administrative Agent after 11:00 a.m. (New York City time) such Loan Request and Information Package shall be deemed to have been received on the following Business Day), the Administrative Agent shall deliver a copy of such proposed Borrowing; Loan Request and Information Package to each Group Agent along with the allocation of the requested Loans among the Groups (y) Borrowing comprised of Eurocurrency Loans which shall be made ratable based on notice, given by a Borrower the Group Loan Limits). Each Group Agent shall notify the Administrative Agent no later than 11:00 A.M. 4:00 p.m. (New York City time) on the third second (2nd) Business Day prior to the date of preceding such proposed Borrowing. The Revolving Credit Loans made Borrowing Date whether the Lenders in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) its Group approve or reject the Notice making of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency requested Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor and (v) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that to the aggregate of extent that any Group Agent does not notify the Eurocurrency Administrative Agent that such Lenders approve such requested Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 on or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. 4:00 p.m. (New York City time) on such day, it shall be deemed to have rejected the date requested Loans, unless on such day and prior to any proposed reallocation by the Administrative Agent of such Group’s deemed rejected portion of the Ratable Share of the Loans in respect of such requested borrowing, such non-responding Group Agent approves in writing such proposed borrowing in the full amount of such requested Loans. In the event that some but not all of the Groups agree to fund their Ratable Share of the requested Loans, the Borrower may request the Administrative Agent to re-allocate the rejected portion of the requested Loans, and seek approval among the Groups that approved the original requested borrowing, based on the Ratable Share of the Group Loan Limits of such Groups; provided, that there shall be no obligation of any Lender in any Group to fund any such incremental Loans. Upon final allocation, which shall in no event result in the Principal of any Group to exceed its Group Loan Limit, the Administrative Agent shall advise each Group Agent of the amount of the requested Loans to be funded by each Lender in its Group and the allocated share of each Lender of such borrowing (the “Allocated Share”), and each such approving Lender shall make available to the Borrower its Allocated Share of the applicable Loans on the proposed Borrowing by any BorrowerDate in accordance with clause (c) below. For the avoidance of doubt, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as no Lender shall have any obligation to approve any Loan Request and no Loans shall be made on a day which does not constitute a Settlement Date.
(c) On each Borrowing Date for any Loans which have been notified by the Agent to the Lenders prior thereto requested and approved in immediately available funds, such Lender’s ratable portion of such Borrowing in Dollars, accordance with clause (a) and (iib) in above, the case of a Borrowing in an Alternative Currencyapplicable Lenders shall, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment satisfaction of the applicable conditions set forth herein (including in Article IIIV) and upon the completion of the application of Collections in accordance with Section 3.01(d) with respect to such Settlement Date, the Agent will make such funds available to such Borrower at the aforesaid applicable Payment Office.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any Administrative Agent in immediately available funds their Allocated Share of the Loans comprising with respect to such borrowing, which shall equal the proposed lesser of: (i) the amount requested by the Borrower under clause (a) above, and (ii) the amount which, after giving effect to such Loans and the application of all Collections in accordance with Section 3.01(d), in each case, on such Borrowing Date, is the largest amount that will not cause (a) the Aggregate Principal to exceed the Facility Limit, or (b) the Aggregate Principal to exceed the Borrowing Base. The Administrative Agent shall make all such funds so received available to the Borrower in respect like funds, by wire transfer of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated funds in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before accordance with the date specified instructions provided in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such dateRequest.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower Date that such Lender will not make available to the Administrative Agent such Lender’s Ratable Portion Allocated Share of such Borrowingborrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion share available to the Agent on the such date of such Borrowing in accordance with this Section 2.3 2.02(c) and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to In such event, if a Lender has not in fact made its Allocated Share of the extent that such Lender shall not have so made such Ratable Portion applicable borrowing available to the Administrative Agent, such then the applicable Lender and such the Borrower severally agree to repay pay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from and including the date such amount is made available to such the Borrower until to but excluding the date such amount is repaid of payment to the Administrative Agent, at (i) in the case of a payment to be made by such BorrowerLender, the interest greater of the Federal Funds Effective Rate and a rate applicable at determined by the time to the Loans comprising such Borrowing Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of such Lendera payment to be made by the Borrower, the Federal Funds Rateinterest rate applicable to the Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender shall repay pays its Allocated Share of the applicable borrowing to the Agent such corresponding amountAdministrative Agent, such then the amount so repaid paid shall constitute such Lender’s Loan as part of included in such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunderBorrowing.
(e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no No Lender shall be responsible for the failure of any other Lender to make funds available to the Borrower in connection with any Loan hereunder.
(f) Unless the Administrative Agent shall have received notice from the Borrower prior to be the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made by such other Lender payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of any Borrowingpayment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Appears in 1 contract
Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower to the Agent not later than 11:00 A.M. (New York City Charlotte, North Carolina, time) on the Business Day prior to the date of such proposed Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower no later than 11:00 A.M. (New York City Charlotte, North Carolina, time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor therefor, (v) the identity of the Borrower to whom such requested Borrowing will be made, and (vvi) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Term Loans shall each be made only on October 31, 2003, but not after the Term Loan Commitment Termination Date (other than with respect to the continuation of such Term Loans for consecutive Interest Periods pursuant to a Notice of Continuation or Conversion) and then only upon receipt of a Notice of Borrowing, given by the Term Loan Lender to the Agent no later than 11:00 A.M. (Charlotte, North Carolina, time) on or before October 28, 2003. The Term Loans shall from time to time be of such Interest Period or Interest Periods as are selected by the Term Loan Borrower in accordance with this Agreement; provided, however, that, at no time shall that portion of the principal of the Term Loans as will be paid at the next occurring installment payment date (in accordance with Section 2.6(b)), be subject to any Interest Period which would extend beyond such next occurring installment payment date.
(c) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (New York City Charlotte, North Carolina, time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion Ratable Portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion Ratable Portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to such Borrower at in the aforesaid applicable Payment Officedeposit accounts designated by the Borrowers in the Account Designation Letter.
(cd) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(de) Unless the Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower that such Lender will not make available to the Agent such Lender’s Ratable Portion of such Borrowing, the Agent may assume that such Lender has made such Ratable Portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 and the Agent may, in reliance upon such assumption, make available to such Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(ef) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans shall be made on notice, given by a the Borrower to the Agent not later than 11:00 A.M. a.m. (New York City time), at least three Business Days before the date of the proposed Borrowing, PROVIDED, HOWEVER, if such Borrowing will bear interest at the Eurodollar Rate, such notice shall be given not later than 11:00 a.m. (New York City time) on at least five Business Days before the date of the proposed Borrowing, and the Agent shall give each Bank prompt notice thereof by telecopier. Each such notice of a Borrowing shall be in the form of Exhibit B (a "NOTICE OF BORROWING"), or by telephone confirmed promptly in a Notice of Borrowing, by an Authorized Officer of the Borrower, specifying (i) the requested date of such Borrowing (which shall be a Business Day prior Day), (ii) the requested aggregate amount of such Borrowing which shall be not less than $1,000,000 and in integral multiples of $100,000, (iii) whether such Borrowing will bear interest at the Eurodollar Rate or the Adjusted Base Rate, (iv) if such Borrowing is to bear interest at the Eurodollar Rate, the applicable Interest Period, and (iv) the fact that the statements set forth in Section 3.2(b) are true as of the date of such proposed Notice of Borrowing; and (y) Borrowing comprised of Eurocurrency Loans shall be made on notice. Each Bank shall, given by a Borrower no later than before 11:00 A.M. a.m. (New York City time) ), on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor and (v) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (New York City time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) at its address set forth in the case of a Borrowing in DollarsSection 8.2, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s Bank's ratable portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in such Alternative CurrencyBorrowing. After the Agent’s 's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III3, the Agent will make such funds available to the Borrower by transferring such Borrower at funds to the aforesaid applicable Payment OfficeConstruction Account or the Revenue Account, in each case established and held by the Collateral Agent pursuant to the terms of the Collateral Agency Agreement.
(cb) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such dateBorrower.
(dc) Unless the Agent shall have received receives notice from a Lender prior to Bank before the date of any proposed Borrowing by any Borrower that such Lender Bank will not make available to the Agent such Lender’s Ratable Portion Bank's ratable portion of such Borrowing, the Agent may assume that such Lender Bank has made such Ratable Portion portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 2.2(a), and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to the extent that such Lender shall Bank has not have so made such Ratable Portion ratable portion available to the Agent, and Agent has made such Lender amount available to the Borrower, the Agent shall first make written demand upon such Bank for payment and shall be entitled to recover such corresponding amount on demand from such Bank. If such Bank does not pay such corresponding amount forthwith upon the Agent's demand therefor, the Agent shall promptly notify the Borrower severally agree and the Borrower shall immediately repay such corresponding amount to repay the Agent; PROVIDED, that if the Borrower repays such corresponding amount to the Agent forthwith and such Bank subsequently makes available to the Agent its ratable portion of such borrowing, the Agent shall promptly make the proceeds thereof available to the Borrower. The Agent shall also be entitled to recover from such Bank or the Borrower, as the case may be, interest on demand such corresponding amount together with interest thereon, for in respect of each day from the date such corresponding amount is was made available by the Agent to such the Borrower until to the date such corresponding amount is repaid to recovered by the Agent, Agent at the following interest rates: (i) in with respect to interest from the case of such Borrower, at the applicable interest rate applicable at selected by the time Borrower with respect to the Loans comprising such Borrowing amount and (ii) in the case of with respect to interest from such LenderBank, at the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(ed) The failure of any Lender Bank to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender Bank of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender Bank shall be responsible for the failure of any other Lender Bank to make the Loan to be made by such other Lender Bank on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) The Borrower hereby requests an initial Loan in the principal amount of [REDACTED] to be made on the Closing Date (the “Initial Loan”) as contemplated in Section 5.03, the proceeds of which shall be retained by the Lenders as contemplated in such Section 5.03. Each (x) Borrowing comprised of Base Rate Loans other Loan hereunder shall be made on notice, given by a at least five (5) days’ prior written request from the Borrower to the Administrative Agent not and each Group Agent in the form of a Loan Request attached hereto as Exhibit A. Each such request for a Loan shall be made no later than 11:00 A.M. a.m. (New York City time) on a Business Day (it being understood that any such request made after such time shall be deemed to have been made on the following Business Day) and shall specify (i) the amount of the Loan(s) requested (which shall not be less than [REDACTED] and shall be an integral multiple of [REDACTED]), (ii) the portion (if any) of such Loan(s) requested that constitute Enhanced Loan(s), (iii) the account to which the proceeds of such Loans shall be distributed, (iv) the date such requested Loan is to be made (which shall be a Business Day and a Settlement Date) (a “Borrowing Date”), (v) a detailed list of the Receivables, if any, proposed to be sold to the Borrower on such proposed Borrowing Date, including in respect of each Receivable the name and Billing Address of the related Obligor (or the identification number or code of such Obligor, provided that it includes the State (or commonwealth) in the United States in respect of such Billing Address), the account number or Contract identification number, the Remaining Term, the ADT Credit Score, the Product Type, whether a credit check was completed, the Unpaid Balance, the Financed Unpaid Balance, the aggregate Unpaid Balance of all such Receivables, and such additional detail that the Administrative Agent may from time to time reasonably request, of each Receivable in each case as of the immediately preceding Cut-off Date, and (vi) an Information Package in respect of the Settlement Period immediately preceding such proposed Borrowing Date specified in such Loan Request and as of the most recent Cut-off Date and which shall also contain the pro forma information regarding any such proposed Loans required by Section 3.01(c).
(b) Not later than 1:00 pm (New York City time) on the same Business Day prior of its receipt of a Loan Request together with the related Information Package pursuant to the date foregoing clause (a) (it being understood that if any such Loan Request or Information Package is received by the Administrative Agent after 11:00 a.m. (New York City time) such Loan Request and Information Package shall be deemed to have been received on the following Business Day), the Administrative Agent shall deliver a copy of such proposed Borrowing; Loan Request and Information Package to each Group Agent along with the allocation of the requested Loans among the Groups (y) Borrowing comprised of Eurocurrency Loans which shall be made ratable based on noticethe Group Loan Limits, given by a Borrower or in the case of any Enhanced Loans, ratable based on the Group Loan Limits of the Enhanced Groups). Each Group Agent shall notify the Administrative Agent no later than 11:00 A.M. 4:00 p.m. (New York City time) on the third second (2nd) Business Day prior to the date of preceding such proposed Borrowing. The Revolving Credit Loans made Borrowing Date whether the Lenders in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) its Group approve or reject the Notice making of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency requested Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor and (v) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that to the aggregate of extent that any Group Agent does not notify the Eurocurrency Administrative Agent that such Lenders approve such requested Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 on or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. 4:00 p.m. (New York City time) on such day, it shall be deemed to have rejected the date requested Loans, unless on such day and prior to any proposed reallocation by the Administrative Agent of such Group’s deemed rejected portion of the Ratable Share of the Loans in respect of such requested borrowing, such non-responding Group Agent approves in writing such proposed borrowing in the full amount of such requested Loans. In the event that some but not all of the Groups agree to fund their Ratable Share of the requested Loans, the Borrower may request the Administrative Agent to re-allocate the rejected portion of the requested Loans, and seek approval among the Groups that approved the original requested borrowing, based on the Ratable Share of the Group Loan Limits of such Groups; provided, that there shall be no obligation of any Lender in any Group to fund any such incremental Loans. Upon final allocation, which shall in no event result in the Principal of any Group to exceed its Group Loan Limit, the Administrative Agent shall advise each Group Agent of the amount of the requested Loans to be funded by each Lender in its Group and the allocated share of each Lender of such borrowing (the “Allocated Share”), and each such approving Lender shall make available to the Borrower its Allocated Share of the applicable Loans on the proposed Borrowing by any BorrowerDate in accordance with clause (c) below. For the avoidance of doubt, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as no Lender shall have any obligation to approve any Loan Request and no Loans shall be made on a day which does not constitute a Settlement Date.
(c) On each Borrowing Date for any Loans which have been notified by the Agent to the Lenders prior thereto requested and approved in immediately available funds, such Lender’s ratable portion of such Borrowing in Dollars, accordance with clause (a) and (iib) in above, the case of a Borrowing in an Alternative Currencyapplicable Lenders shall, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment satisfaction of the applicable conditions set forth herein (including in Article IIIV) and upon the completion of the application of Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), the Agent will (e) and (f) and Section 7.09, as applicable, with respect to such Settlement Date, make such funds available to the Administrative Agent in immediately available funds their Allocated Share of the Loans with respect to such borrowing, which shall equal the lesser of: (i) the amount requested by the Borrower at under clause (a) above, and (ii) the aforesaid applicable Payment Office.
amount which, after giving effect to such Loans and the application of all Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), (e) and (f), as applicable, in each case, on such Borrowing Date, is the largest amount that will not cause (a) the Aggregate Principal to exceed the Facility Limit, (b) the Aggregate Principal less the Principal of all Enhanced Loans to exceed the Borrowing Base, or (c) Each Notice of the Aggregate Principal to exceed the Enhanced Borrowing Base. The Administrative Agent shall be irrevocable and binding on make all such funds so received available to the Borrower or Borrowers delivering in like funds, by wire transfer of such Notice. If any Notice of Borrowing given by a Borrower specifies that any of funds in accordance with the Loans comprising the proposed Borrowing instructions provided in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such dateRequest.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower Date that such Lender will not make available to the Administrative Agent such LenderL▇▇▇▇▇’s Ratable Portion Allocated Share of such Borrowingborrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion share available to the Agent on the such date of such Borrowing in accordance with this Section 2.3 2.02(c) and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to In such event, if a Lender has not in fact made its Allocated Share of the extent that such Lender shall not have so made such Ratable Portion applicable borrowing available to the Administrative Agent, such then the applicable Lender and such the Borrower severally agree to repay pay to the Administrative Agent forthwith on demand such corresponding amount together with interest thereon, for each day from and including the date such amount is made available to such the Borrower until to but excluding the date such amount is repaid of payment to the Administrative Agent, at (i) in the case of a payment to be made by such BorrowerLender, the interest greater of the Federal Funds Effective Rate and a rate applicable at determined by the time to the Loans comprising such Borrowing Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of such Lendera payment to be made by the Borrower, the Federal Funds Rateinterest rate applicable to the Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender shall repay pays its Allocated Share of the applicable borrowing to the Agent such corresponding amountAdministrative Agent, such then the amount so repaid paid shall constitute such Lender’s Loan as part of included in such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunderBorrowing.
(e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no No Lender shall be responsible for the failure of any other Lender to make funds available to the Borrower in connection with any Loan hereunder.
(f) Unless the Administrative Agent shall have received notice from the Borrower prior to be the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made by such other Lender payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of any Borrowingpayment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
Appears in 1 contract
Making Loans. (a) Each The Transaction Revolving Credit Loans made pursuant to Section 2.1(b) shall be made on the Effective Date on notice, given by U.S. Operating Co. to the Agent no later than 11:00 A.M. (xNew York City time) on the second Business Day preceding the Effective Date in the case of Base Rate Loans, and not later than 11:00 A.M. (New York City time) on the third Business Day prior to the Effective Date in the case of Eurocurrency Loans; each General Purpose Revolving Credit Loan Borrowing comprised of Base Rate Loans shall be made on notice, given by a Borrower an Operating Company to the Agent not later than 11:00 A.M. (New York City time) on the Business Day prior to the date of such proposed Borrowing; and (y) each General Purpose Revolving Credit Loan Borrowing comprised of Eurocurrency Loans shall be made on notice, given by a Borrower an Operating Company no later than 11:00 A.M. (New York City time) on the third Business Day prior to the date of such proposed Borrowing. The Revolving Credit Loans made in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the General Purpose Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency Loans. Each such notice (a “"Notice of Borrowing”") shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Revolving Credit Borrowing, (ii) the aggregate amount of such proposed Revolving Credit Borrowing, (iii) in the case of General Purpose Revolving Credit Loans, the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor therefor, and (v) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that the aggregate of the Eurocurrency Loans made in the same currency to any Borrower Operating Company for each Interest Period must be in an amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Revolving Credit Loan Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Additional Term Loans shall each be made upon receipt of a Notice of Borrowing, given by U.S. Operating Co. to the Agent no later than 11:00 A.M. (New York City time) on the second Business Day prior to the Effective Date in the case of Base Rate Loans, and not later than 11:00 A.M. (New York City time) on the third Business Day prior to the Effective Date in the case of Eurocurrency Loans. The Additional Term Loans shall be made as Base Rate Loans unless (subject to Section 2.12) the Notice of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Periods therefor. The Notice of Borrowing for the Additional Term Loans shall specify therein (i) the Effective Date, (ii) the aggregate amount of the U.S. Dollar Term A Loans and the aggregate amount of the U.S. Dollar Term C Loans, and (iii) the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor; provided, however, that the aggregate Eurocurrency Loans for each Interest Period must be in an amount not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(c) The Agent shall give to each Lender prompt notice of the Agent’s 's receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. (New York City time) on the date of the proposed Borrowing by any Borrower, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s 's ratable portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an Alternative Currency, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s 's ratable portion of such Borrowing in such Alternative Currency. After the Agent’s 's receipt of such funds and upon fulfillment of the applicable conditions set forth in Article III, the Agent will make such funds available to such Borrower at the aforesaid applicable Payment Office.
(cd) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any of the Loans comprising the proposed Borrowing in respect of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before the date specified in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such date.
(de) Unless the Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower that such Lender will not make available to the Agent such Lender’s 's Ratable Portion of such Borrowing, the Agent may assume that such Lender has made such Ratable Portion available to the Agent on the date of such Borrowing in accordance with this Section 2.3 and the Agent may, in reliance upon such assumption, make available to such Borrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Portion available to the Agent, such Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s 's Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(ef) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.
Appears in 1 contract
Making Loans. (a) Each (x) Borrowing comprised of Base Rate Loans Loan hereunder shall be made on notice, given by a at least three (3) Business Days’ prior written request from the Borrower to the Administrative Agent not and each Group Agent in the form of a Loan Request attached hereto as Exhibit A. Each such request for a Loan shall be made no later than 11:00 A.M. a.m. (New York City time) on a Business Day (it being understood that any such request made after such time shall be deemed to have been made on the following Business Day) and shall specify (i) the amount of the Loan(s) requested (which shall not be less than $1,000,000 and shall be an integral multiple of $100,000), (ii) the account to which the proceeds of such Loans shall be distributed, (iii) the date such requested Loan is to be made (which shall be a Business Day) (a “Borrowing Date”), (iv) a detailed list of the Receivables, if any, proposed to be sold to the Borrower on such proposed Borrowing Date, including in respect of each Receivable the name and Billing Address of the related Obligor (or the identification number or code of such Obligor, provided that it includes the State (or commonwealth) in the United States in respect of such Billing Address), the account number or Contract identification number, the Original Term and the Remaining Term, the FICO Score of the related Obligor, the original and current outstanding Principal Balance, the applicable interest rate and basis, the monthly payment amount, the aggregate Adjusted Principal Balance of all such Receivables, and such additional detail that the Administrative Agent may from time to time reasonably request, of each Receivable in each case as of the immediately preceding Cut-off Date, and (vi) an Information Package in respect of the Settlement Period immediately preceding such proposed Borrowing Date specified in such Loan Request and as of the most recent Cut-off Date and which shall also contain the pro forma information regarding any such proposed Loans required by Section 3.01(c).
(b) Not later than 1:00 pm (New York City time) on the same Business Day prior of its receipt of a Loan Request together with the related Information Package pursuant to the date foregoing clause (a) (it being understood that if any such Loan Request or Information Package is received by the Administrative Agent after 11:00 a.m. (New York City time) such Loan Request and Information Package shall be deemed to have been received on the following Business Day), 751499193.15 22727329 47 the Administrative Agent shall deliver a copy of such proposed Borrowing; Loan Request and Information Package to each Group Agent along with the allocation of the requested Loans among the Groups (y) Borrowing comprised of Eurocurrency Loans which shall be made ratable based on notice, given by a Borrower the Group Loan Limits). Each Group Agent shall notify the Administrative Agent no later than 11:00 A.M. 4:00 p.m. (New York City time) on the third second (2nd) Business Day prior to the date of preceding such proposed Borrowing. The Revolving Credit Loans made Borrowing Date whether the Lenders in Dollars shall be made as Base Rate Loans unless (subject to Section 2.12) its Group approve or reject the Notice making of Borrowing specifies that all or a pro rata portion thereof shall be Eurocurrency Loans and specifies the Interest Period or Periods therefor, and the Revolving Credit Loans (subject to Section 2.12) made in an Alternative Currency shall be made as Eurocurrency requested Loans. Each such notice (a “Notice of Borrowing”) shall be in substantially the form of Exhibit B, specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate amount of such proposed Borrowing, (iii) the currency of such proposed Revolving Credit Loans, (iv) in the case of a proposed Borrowing in Dollars, the amount thereof, if any, requested to be Eurocurrency Loans and the initial Interest Period or Periods therefor and (v) in the case of a proposed Borrowing in an Alternative Currency, the initial Interest Period or Periods for the Eurocurrency Loans comprising such Borrowing, except that if no Interest Period is selected for any Eurocurrency Loan, the Interest Period for such Loan shall be one month; provided, however, that to the aggregate of extent that any Group Agent does not notify the Eurocurrency Administrative Agent that such Lenders approve such requested Loans made in the same currency to any Borrower for each Interest Period must be in an amount of not less than $500,000 on or an integral multiple of $100,000 in excess thereof (or the equivalent thereof in the applicable Alternative Currency) and each Borrowing consisting of Base Rate Loans shall be in an aggregate amount of not less than $500,000 or an integral multiple of $100,000 in excess thereof.
(b) The Agent shall give to each Lender prompt notice of the Agent’s receipt of a Notice of Borrowing and, if Eurocurrency Loans are properly requested in such Notice of Borrowing, the applicable interest rate under Section 2.9(b). Each Lender shall, before 11:00 A.M. 4:00 p.m. (New York City time) on such day, it shall be deemed to have rejected the date requested Loans, unless on such day and prior to any proposed reallocation by the Administrative Agent of such Group’s deemed rejected portion of the Ratable Share of the Loans in respect of such requested borrowing, such non-responding Group Agent approves in writing such proposed borrowing in the full amount of such requested Loans. In the event that some but not all of the Groups agree to fund their Ratable Share of the requested Loans, the Borrower may request the Administrative Agent to re- allocate the rejected portion of the requested Loans, and seek approval among the Groups that approved the original requested borrowing, based on the Ratable Share of the Group Loan Limits of such Groups; provided, that there shall be no obligation of any Lender in any Group to fund any such incremental Loans. Upon final allocation, which shall in no event result in the Principal of any Group to exceed its Group Loan Limit, the Administrative Agent shall advise each Group Agent of the amount of the requested Loans to be funded by each Lender in its Group and the allocated share of each Lender of such borrowing (the “Allocated Share”), and each such approving Lender shall make available to the Borrower its Allocated Share of the applicable Loans on the proposed Borrowing by any BorrowerDate in accordance with clause (c) below. For the avoidance of doubt, make available for the account of its Applicable Lending Office to the Agent (i) in the case of a Borrowing in Dollars, at such account maintained at the Payment Office for Dollars as no Lender shall have any obligation to approve any Loan Request.
(c) Other than Withdrawals made pursuant to Section 3.01(g), on each Borrowing Date for any Loans which have been notified by the Agent to the Lenders prior thereto requested and approved in immediately available funds, such Lender’s ratable portion of such Borrowing in Dollars, accordance with clause (a) and (iib) in above, the case of a Borrowing in an Alternative Currencyapplicable Lenders shall, at such account maintained at the Payment Office for such Alternative Currency as shall have been notified by the Agent to the Lenders prior thereto and in immediately available funds, such Lender’s ratable portion of such Borrowing in such Alternative Currency. After the Agent’s receipt of such funds and upon fulfillment satisfaction of the applicable conditions set forth herein (including in Article IIIV) and upon the completion of the application of Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), the Agent will (e) and (f) and Section 7.09, as applicable, with respect to such Borrowing Date, make such funds available to such Borrower at the aforesaid applicable Payment Office.
(c) Each Notice of Borrowing shall be irrevocable and binding on the Borrower or Borrowers delivering such Notice. If any Notice of Borrowing given by a Borrower specifies that any Administrative Agent in immediately available funds their Allocated Share of the Loans comprising with respect to such borrowing, which shall equal the proposed lesser of:
(i) the amount requested by the Borrower under clause (a) above, and (ii) the amount which, after giving effect to such Loans and the application of all Collections and Supporting LC Draw Proceeds in accordance with Section 3.01(d), (e) and (f) and Section 7.09, as applicable, in each case, on such Borrowing Date, is the largest amount that will not cause (a) the Aggregate Principal to exceed the Facility Limit or (b) the Aggregate Principal to exceed the Borrowing Base. The Administrative Agent shall make all such funds so received available to the Borrower in respect like funds, by wire transfer of which such Notice of Borrowing is delivered are to be comprised of Eurocurrency Loans or Loans denominated funds in an Alternative Currency, such Borrower shall indemnify each Lender against any loss, cost or expense incurred by such Lender as a result of any failure to fulfill on or before accordance with the date specified instructions provided in such Notice of Borrowing for such proposed Borrowing the applicable conditions set forth in Article III, including, without limitation, any loss (including, without limitation, loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund any Eurocurrency Loan or any Loan denominated in an Alternative Currency to be made by such Lender as part of such proposed Borrowing, as a result of such failure, is not made on such dateRequest.
(d) Unless the Administrative Agent shall have received notice from a Lender prior to the date of any proposed Borrowing by any Borrower Date that such Lender will not make available to the Administrative Agent such Lender▇▇▇▇▇▇’s Ratable Portion Allocated Share of such Borrowingborrowing, the Administrative Agent may assume that such Lender has made such Ratable Portion share available to the Agent on the such date of such Borrowing in accordance with this Section 2.3 2.02(c) and the Agent may, in reliance upon such assumption, make available to such the Borrower on such date a corresponding amount. If and to In such event, if a Lender has not in fact made its Allocated Share of the extent that such Lender shall not have so made such Ratable Portion applicable borrowing available to the Administrative Agent, such then the applicable Lender and such Borrower severally agree to repay to the Agent forthwith on demand such corresponding amount together with interest thereon, for each day from the date such amount is made available to such Borrower until the date such amount is repaid to the Agent, at (i) in the case of such Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan as part of such Borrowing for purposes of this Agreement. If such Borrower shall repay to the Agent such corresponding amount, such payment shall not relieve such Lender of any obligation it may have to such Borrower hereunder.
(e) The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on the date of such Borrowing, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.the
Appears in 1 contract