Making the Loans. (a) The Borrower shall give the Administrative Agent prior telephonic notice (immediately confirmed in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), (i) on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Date, (ii) not later than 12:00 noon (New York City time) ten 10 Business Days prior to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of a LIBOR Rate Loan, the initial Interest Period with respect thereto, (iii) the use of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing. (b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof. (c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
Appears in 1 contract
Making the Loans. (a) The Borrower shall give the Administrative Agent prior telephonic notice (immediately confirmed Except as otherwise provided in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")Section 2.03(c), (i) each Borrowing shall be made on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Datenotice, (ii) given not later than 12:00 (x) noon (New York City time) ten 10 on the third Business Days Day (in the case of the proposed Borrowing to be made on the Closing Date, 9:00 A.M. (New York City time) one Business Day (or such shorter period as is approved by the Agent)) prior to the proposed date for borrowing of the second drawing proposed Borrowing in the case of the Tranche A Term a Borrowing consisting of Eurocurrency Rate Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and or (iiiy) not later than 12:00 noon (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding proposed Borrowing in the month case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Agent, which shall give to each Appropriate Lender prompt notice thereof by fax or e-mail. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in which writing, or fax in substantially the proposed borrowing is form of Exhibit B hereto (or in such other form as may be acceptable to occur the Agent), specifying therein the requested (ori) date and Facility of such Borrowing, for any (ii) Type of Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the abovecase of a Borrowing consisting of Eurocurrency Rate Loans, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 initial Interest Period. Each Appropriate Lender shall (1) before noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan andsuch Borrowing, in the case of a LIBOR Borrowing consisting of Eurocurrency Rate Loans and (2) before 2:00 P.M. (New York City time) on the date of such Borrowing, in the case of a Borrowing consisting of Base Rate Loans, make available for the account of its Applicable [[3666665]] Lending Office to the Agent at the applicable Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. 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 the Borrower at the Agent’s address referred to in Section 9.02 or at the applicable Payment Office, as the case may be. Notwithstanding any other provision contained herein to the contrary, the last day of each Interest Period in effect with respect to each Revolving Credit Loan and Term Loan outstanding immediately prior to the First Amendment Restatement Date shall be deemed to be the First Amendment Restatement Date, and on the First Amendment Restatement Date, the Borrower shall pay interest on the unpaid principal amount of each Revolving Credit Loan or Term Loan that is accrued and unpaid through but excluding the First Amendment Restatement Date at the rate per annum applicable to such Interest Period under Section 2.07(a)(i) or 2.07(a)(ii), as applicable. Each Revolving Credit Loan or Term Loan outstanding as of the First Amendment Restatement Date will be deemed continued on the First Amendment Restatement Date as a Revolving Credit Loan or Term Loan, the as applicable, with an initial Interest Period with respect theretoas set forth on the notice of continuation attached as Exhibit A to the First Amendment.
(a) Anything in subsection (a) above to the contrary notwithstanding, (iiii) the use Borrower may not select Eurocurrency Rate Loans for any Borrowing if the aggregate amount of such Borrowing is less than the Borrowing Minimum or if the obligation of the proceeds of such proposed LoanLenders to make Eurocurrency Rate Loans shall then be suspended pursuant to Section 2.08 or 2.12, and (ivii) the proposed borrowing date, which must Eurocurrency Rate Loans may not be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day outstanding as part of the calendar month following the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B six separate Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent Borrowings and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowingten separate Revolving Credit Borrowings.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and binding on the Borrower. In the case of any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate Loans, the Borrower shall be bound indemnify each Appropriate Lender against any loss, cost or expense incurred by such Lender as a result of any failure to make a borrowing fulfill on or before the date specified in accordance therewith. Each such Notice of Borrowing for such Borrowing the applicable conditions set forth herein, including any loss (including loss of margin), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan shall to be made in by such Lender as part of such Borrowing when such Loan, as a minimum amount result of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereofsuch failure, is not made on such date.
(c) Except as otherwise provided Unless the Agent shall have received notice from an Appropriate Lender prior to the time of any Borrowing 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 portion available to the Agent on the date of such Borrowing in accordance with subsection (a) of this Section 2.02(c)2.02 and the Agent may, all in reliance upon such assumption, make available to the 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 the 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 the Borrower until the date such amount is repaid to the Agent, at (i) in the case of the Borrower, the higher of (A) the interest rate applicable at the time to the Loans under this Agreement shall be made comprising such Borrowing and (B) the cost of funds incurred by the Lenders simultaneously Agent in respect of such amount and proportionately (ii) in the case of such Lender, the Federal Funds Rate. If such Lender shall repay to their Pro Rata Shares 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.
(d) The obligations of the Commitment for the applicable Class, it being understood that Lenders hereunder to make Loans and to make payments pursuant to Section 9.04(c) are several and not joint. The failure of any Appropriate Lender to make any Loan or to make any payment under Section 9.04(c) on any date required hereunder shall not relieve any other Appropriate Lender of its corresponding obligation to do so on such date and no Lender shall be responsible for any default by the failure of any other Lender in that other Lender's obligations to make a its Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.its payment under Section 9.04(c). [[3666665]]
Appears in 1 contract
Making the Loans. (a) The Borrower shall give the Administrative Agent prior telephonic notice (immediately confirmed Except as otherwise provided in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")Section 2.03(c), (i) each Borrowing shall be made on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Datenotice, (ii) given not later than 12:00 noon (x) 11:00 A.M. (New York City time) ten 10 on the third Business Days Day prior to the proposed date for borrowing of the second drawing proposed Borrowing in the case of the Tranche A Term a Borrowing consisting of Eurodollar Rate Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and or (iiiy) not later than 12:00 noon 11:00 A.M. (New York City time) on the date of the proposed Borrowing in the case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Agent, which shall give to each applicable Lender prompt notice thereof by telecopier or any other electronic means agreed to by the Agent. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed promptly in writing, or by telecopier (or any other electronic means agreed to by the Agent), in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in the case of a Borrowing consisting of Eurodollar Rate Loans, the initial Interest Period for each proposed Tranche B Term such Loan. Each applicable Lender shall, not later than the fifteenth (15th) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon before 1:00 P.M. (New York City time) on the borrowing date of such Borrowing make available for the proposed Loanaccount of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s Ratable Share of such Borrowing. 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 the Borrower at the Agent’s address referred to in Section 9.02(a). Such .
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurodollar Rate Loans for any Borrowing if the aggregate amount of such Borrowing is less than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate Loans shall then be suspended pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar Rate Loans may not be outstanding as part of more than eighteen separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and shall specify (i) binding on the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSIONBorrower delivering such notice. be a Reference Rate Loan or a LIBOR Rate Loan and, in In the case of a LIBOR any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate LoanLoans, the initial Interest Period with respect theretoBorrower shall indemnify each applicable Lender against any loss, (iii) the use cost or expense incurred by such Lender as a result of any failure of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be Borrower to fulfill on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following before the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of specified in such Notice of BorrowingBorrowing for such Borrowing the applicable conditions set forth in Article III, including the requested date including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the proposed Tranche B Term liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan and the amount thereof to be made by such Lender as part of such Borrowing when such Loan, 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 time of any Borrowing that such Lender will not make available to the Agent such Lender. Notwithstanding the above’s ratable portion of such Borrowing, the Borrower cannot request more than two Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with subsection (2a) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent of this Section 2.02, as applicable, and the Lenders may act without liability Agent may, in reliance upon such assumption, make available to the basis of writtenBorrower 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, telecopied or telephonic notice believed by such Lender and the Administrative Borrower severally agree to repay to the Agent in good faith to be forthwith on demand such corresponding amount together with interest thereon, for each day from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower date such amount is made available to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice date such amount is repaid to the contrary. The Administrative Agent and Agent, at (i) in the Lenders shall have no duty to verify the authenticity case of the signature appearing on any written Notice Borrower, the interest rate applicable at the time to the Loans comprising such Borrowing and (ii) in the case of Borrowingsuch 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.
(be) Each Notice The failure of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound any Lender to make a borrowing in accordance therewith. Each the Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall 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 Lenders simultaneously and proportionately to their Pro Rata Shares date of the Commitment for the applicable Classsuch Borrowing, it being understood that but no Lender shall be responsible for any default by the failure of any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required Loan to be made by it by such other Lender on the terms date of this Agreement regardless of the failure by any other LenderBorrowing.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Eastman Kodak Co)
Making the Loans. (a) The Borrower Each Borrowing shall give the Administrative Agent prior telephonic notice (immediately confirmed in writingbe made on notice, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), (i) on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Date, (ii) given not later than 12:00 noon (New York City timex) ten 10 Business Days prior to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon 11:00 A.M. (New York City time) on the date for each proposed Tranche B Term Loan, not later than third Business Day prior to the fifteenth Closing Date in the case of a Borrowing consisting of Eurodollar Rate Loans or (15thy) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon 11:00 A.M. (New York City time) on the borrowing Closing Date in the case of a Borrowing consisting of Base Rate Loans, by the Company to the Agent, which shall give to each applicable Lender prompt notice thereof by telecopier or any other electronic means agreed to by the Agent. Such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed promptly in writing, or by telecopier (or any other electronic means agreed to by the Agent), in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing, (ii) Type of Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing and (iv) in the proposed case of a Borrowing consisting of Eurodollar Rate Loans, the initial Interest Period for each such Loan. Each applicable Lender shall, before 1:00 P.M. (New York City time) on the Closing Date make available for the account of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s Ratable Share of such Borrowing. 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 the Company at the Agent’s address referred to in Section 9.02(a). Such .
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Company may not select Eurodollar Rate Loans for any Borrowing if the aggregate amount of such Borrowing is less than $10,000,000 or if the obligation of the Lenders to make Eurodollar Rate Loans shall then be suspended pursuant to Section 2.06 or 2.10 and (ii) the Eurodollar Rate Loans may not be outstanding as part of more than eight separate Borrowings.
(c) The Notice of Borrowing shall be irrevocable and shall specify (i) binding on the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSIONCompany. be a Reference Rate Loan or a LIBOR Rate Loan and, in In the case of a LIBOR any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate LoanLoans, the initial Interest Period with respect theretoCompany shall indemnify each applicable Lender against any loss, (iii) the use cost or expense incurred by such Lender as a result of any failure of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be Company to fulfill on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following before the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of specified in such Notice of BorrowingBorrowing for such Borrowing the applicable conditions set forth in Article III, including the requested date including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the proposed Tranche B Term liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan and the amount thereof to be made by such Lender. Notwithstanding the aboveLender as part of such Borrowing when such Loan, the Borrower canas a result of such failure, is not request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any made on such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowingdate.
(bd) Each Notice Unless the Agent shall have received notice from a Lender prior to the time of any Borrowing pursuant 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 portion available to the Agent on the Closing Date in accordance with subsection (a) of this Section 2.02 shall be irrevocable 2.02, and the Borrower Agent may, in reliance upon such assumption, make available to the Company on the Closing Date a corresponding amount. If and to the extent that such Lender shall be bound not have so made such ratable portion available to make a borrowing the Agent, such Lender and the Company 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 the Company until the date such amount is repaid to the Agent, at: (i) in accordance therewiththe case of the Company, 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. Each If such Lender shall repay to the Agent such corresponding amount, such amount so repaid shall constitute such Lender’s Loan shall be made in a minimum amount as part of $25,000,000 and shall be in an integral multiple such Borrowing for purposes of $1,000,000 in excess thereofthis Agreement.
(ce) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall 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 Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable ClassClosing Date, it being understood that but no Lender shall be responsible for any default by the failure of any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required Loan to be made by it by such other Lender on the terms of this Agreement regardless of the failure by any other LenderClosing Date.
Appears in 1 contract
Samples: Debtor in Possession Loan Agreement (Eastman Kodak Co)
Making the Loans. (a) The A Borrower shall give the Administrative Agent prior telephonic telephone notice (immediately which notice, if requested by the Agent, must be promptly confirmed in writing, writing in substantially the form of Exhibit C K hereto (a "Notice of Borrowing")), ) (i) not later than 11:00 a.m. (New York City time) on the Effective Date for a portion date of the Tranche A Term Loans specified proposed borrowing, in the Notice case of Borrowing delivered on the Effective Datea borrowing consisting of Base Rate Loans, or (ii) not later than 12:00 noon (New York City time) ten 10 three Business Days prior to such proposed borrowing in the proposed date for case of a borrowing consisting of the second drawing of the Tranche A Term Eurodollar Loans, provided that Eurodollar Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) will only be made on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day first Business Day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan)a month. Such Notice of Borrowing shall be irrevocable and shall specify (i) the Borrower that is requesting such Loan, the principal amount of the proposed borrowing (which, in the case of a Eurodollar Loan, (ii) must be in a minimum amount of $3,000,000 and in multiples of $1,000,000 in excess thereof), whether the such Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Base Rate Loan or a LIBOR Rate Eurodollar Loan and, in the case of a LIBOR Rate Eurodollar Loan, the initial Initial Interest Period with respect theretofor such Eurodollar Loan, (iii) the use of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, Day and, with respect to: (A) in the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) case of a Tranche B Term Eurodollar Loan, must be at least the 5th first Business Day of a month, and such Borrower shall be bound to make a borrowing in accordance therewith. At no time shall the calendar month following the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or Borrowers collectively have more than three (3) Tranche B Term Eurodollar Loans in the aggregateoutstanding at any one time. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied telecopy or telephonic telephone notice believed by the Administrative Agent in good faith to be from the a Borrower (or from any Authorized Officer officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower , and the Borrowers hereby waives waive the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
Appears in 1 contract
Making the Loans. (a) The Each Term Loan Borrowing (other than with respect to the initial Borrowing made hereunder) shall be made on notice, given by the Borrower shall give the to Administrative Agent not later than 11:00 a.m. (New York City time) at least two (2) Business Days prior telephonic to the proposed Term Loan Borrowing. Each such notice (immediately confirmed in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing"))) shall be in substantially the form of Exhibit D, which Notice of Borrowing shall specify (i) on the Effective Date for a portion date of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Daterequested Borrowing, (ii) not later than 12:00 noon (New York City time) ten 10 Business Days prior to the proposed date for borrowing amount of the second drawing of the Tranche A Term Loans providedsuch Borrowing, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon the Permitted Expenditures to be paid with the proceeds of such Borrowing. In connection with submission of a Notice of Borrowing, the Borrower may request one or more modifications to an Approved Budget, provided that the Permitted Expenditures set forth in such Approved Budget may be adjusted by (New York City timex) on an amount equal to 10% of such Permitted Expenditures in the date aggregate (the "Maximum Aggregate Adjustment Amount") (provided that no single line item for each proposed Tranche B Term Loan, not later than Permitted Expenditures in the fifteenth (15th) day Approved Budget may be adjusted by an amount in excess of 50% of the calendar month preceding Maximum Aggregate Adjustment Amount (the month in Maximum Line Item Adjusted Amount)), plus (y) the amount by which the proposed borrowing is to occur (oractual cash revenues, for any including user terminal and other receipts, exceed the forecasted cash revenue set forth in the Approved Budget, without the written consent of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but Required Lenders.
(b) Each Term Loan Borrowing shall be in no event later than 12:00 noon (New York City time) on the borrowing date an aggregate amount of the proposed Loan). Such lesser of $2,000,000 and the remaining Aggregate Commitment and no more than one Term Loan Borrowing shall be made during any 15 day period; provided, however, that any Interim Loans pursuant to an Interim Financing Order shall be limited to $4,000,000 in the aggregate.
(c) Each Notice of Borrowing shall be irrevocable and shall specify (i) binding on the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of a LIBOR Rate Loan, the initial Interest Period with respect thereto, (iii) the use of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of BorrowingBorrower.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
Appears in 1 contract
Samples: Secured Super Priority Debtor in Possession Credit Agreement (Globalstar Telecommunications LTD)
Making the Loans. (a) The Borrower Each Borrowing shall give the Administrative Agent prior telephonic notice (immediately confirmed in writingbe made on notice, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), (i) on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Date, (ii) given not later than 12:00 noon (New York City timex) ten 10 Business Days prior to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) on the third Business Day prior to the date for each proposed Tranche B Term Loanof a Eurocurrency Rate Borrowing, not later than the fifteenth and (15thy) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon 11:00 A.M. (New York City time) on the borrowing date day of a Base Rate Borrowing, by the proposed Loan)U.S. Borrower (on its own behalf and on behalf of any Euro Borrower) to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier. Such Each notice of a Borrowing (a “Notice of Borrowing Borrowing”) shall be irrevocable made in writing, or verbally and shall specify confirmed immediately in writing, by telecopier, electronic mail, telex or cable, in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) the principal amount date of the proposed Loansuch Borrowing (which shall be a Business Day), (ii) whether the Type of Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan andcomprising such Borrowing, (iii) aggregate amount of such Borrowing, (iv) in the case of a LIBOR Borrowing comprised of Eurocurrency Rate LoanLoans, the initial Interest Period with respect thereto, (iii) the use of the proceeds of for each such proposed Loan, and (ivv) the proposed borrowing date, name of the Borrower (which must shall be the U.S. Borrower or a Business Day, and, with respect to: Euro Borrower). Each Lender shall (A) before 11:00 A.M. Local Time on the Tranche A Term Loans, must be on or within 30 days after date of such Borrowing (in the Effective Date case of a Eurocurrency Rate Borrowing) and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following before 1:00 P.M. (New York City time) on the date of such Borrowing (in the Notice case of a Base Rate Borrowing), make available for the account of its Applicable Lending Office to the Administrative Agent at the Administrative Agent’s Account in same day funds, such Lender’s ratable portion of such Borrowing. The After the Administrative Agent’s receipt of such funds and upon fulfillment of the applicable conditions set forth in Article IV (Conditions of Lending), the Administrative Agent shall promptly notify each Lender of will make such Notice of Borrowing, including funds available to the requested date of relevant Borrower in such manner as the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders U.S. Borrower may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowingagree.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
Appears in 1 contract
Samples: Term Loan Agreement (FMC Corp)
Making the Loans. (a) The Borrower Each Borrowing shall give the Administrative Agent prior telephonic notice (immediately confirmed in writingbe made on notice, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), (i) on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Date, (ii) given not later than 12:00 noon (New York City timex) ten 10 Business Days prior to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) on the third Business Day prior to the date for each proposed Tranche B Term Loanof a Eurocurrency Rate Borrowing, not later than the fifteenth and (15thy) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon 11:00 A.M. (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan and, in the case day of a LIBOR Base Rate Loan, the initial Interest Period with respect thereto, (iii) the use of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof. Each notice of a Borrowing (a “Notice of Borrowing”) shall be made in writing by telecopier, electronic mail, telex or cable, in substantially the form of Exhibit B-1 hereto, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day), (ii) Type of Loan comprising such Borrowing, (iii) aggregate amount of such Borrowing, (iv) in the case of a Borrowing comprised of Eurocurrency Rate Loans, the Interest Period for each such Loan, and (v) the name of the Borrower. The Borrower hereby waives Each Lender shall (A) before 11:00 A.M. Local Time on the right date of such Borrowing (in the case of a Eurocurrency Rate Borrowing) and (B) before 1:00 P.M. (New York City time) on the date of such Borrowing (in the case of a Base Rate Borrowing), make available for the account of its Applicable Lending Office to dispute the Administrative Agent at the Administrative Agent's record ’s Account in same day funds, such Lender’s ratable portion of such Borrowing. After the Administrative Agent’s receipt of such funds and upon fulfillment of the terms applicable conditions set forth in Article IV (Conditions of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until Lending), the Administrative Agent receives written notice will make such funds available to the contrary. The Borrower in such manner as the Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of BorrowingBorrower may agree.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
Appears in 1 contract
Samples: Term Loan Agreement (FMC Corp)
Making the Loans. (a) The Borrower Except as otherwise provided in Section 2.03, each Borrowing shall give the Administrative Agent prior telephonic notice (immediately confirmed in writingbe made on notice, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), (i) on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Date, (ii) given not later than 12:00 noon (x) 11:00 A.M. (New York City time) ten 10 on the third Business Days Day prior to the proposed date for borrowing of the second drawing proposed Borrowing in the case of the Tranche A Term a Borrowing consisting of Eurodollar Rate Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and or (iiiy) not later than 12:00 noon 11:00 A.M. (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding proposed Borrowing in the month case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Agent, which shall give to each Lender prompt notice thereof. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in which writing, or telecopier in substantially the proposed borrowing is to occur form of Exhibit B hereto, or such other form as may be approved by the Agent (orincluding any form on an electronic platform or electronic transmission system as shall be approved by the Agent), appropriately completed and signed by a Responsible Officer, specifying therein the requested (i) date of such Borrowing, (ii) Type of Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the case of a Borrowing consisting of Eurodollar Rate Loans, initial Interest Period for any of the abovesuch Loans. Each Lender shall, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon before 1:00 P.M. (New York City time) on the borrowing date of such Borrowing, make available for the proposed Loanaccount of its Applicable Lending Office to the Agent at the Agent’s Account, in same day funds, such Lender’s Ratable Share of such Borrowing. 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 the Borrower at the Agent’s address referred to in Section 8.02.
(b) Each Borrowing of Eurodollar Rate Loans shall be in an amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof, and each Borrowing of Base Rate Loans shall be in an amount of $500,000 or a whole multiple of $100,000 in excess thereof; provided that if the Lenders fund their participation interests in any Letter of Credit pursuant to Section 2.03(c), the resulting Borrowing may be in the amount of the payment made by the applicable Issuing Bank in respect of such Letter of Credit. Such Borrowings comprised of Eurodollar Rate Loans may not be outstanding as part of more than ten separate Interest Periods.
(c) Each Notice of Borrowing shall be irrevocable and shall specify (i) binding on the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSIONBorrower. be a Reference Rate Loan or a LIBOR Rate Loan and, in In the case of a LIBOR any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurodollar Rate LoanLoans, the initial Interest Period with respect theretoBorrower shall indemnify each Lender against any loss, (iii) the use cost or expense incurred by such Lender as a result of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be any failure to fulfill on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following before the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of specified in such Notice of BorrowingBorrowing the applicable conditions set forth in Article III, including the requested date any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the proposed Tranche B Term liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan and the amount thereof to be made by such Lender as part of such Borrowing when such Loan, 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 Borrowing that such Lender will not make available to the Agent such Lender. Notwithstanding the above’s Ratable Share of such Borrowing, the Borrower cannot request more than two Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with clause (2a) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent of this Section 2.02 and the Lenders may act without liability Agent may, in reliance upon such assumption, make available to the basis of writtenBorrower on such date a corresponding amount. If and to the extent that such Lender shall not have so made such Ratable Share available to the Agent, telecopied or telephonic notice believed by such Lender and the Administrative Borrower severally agree to repay to the Agent in good faith to be forthwith on demand such corresponding amount together with interest thereon, for each day from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower date such amount is made available to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice date such amount is repaid to the contrary. The Administrative Agent and Agent, at (i) in the Lenders shall have no duty to verify the authenticity case of the signature appearing on any written Notice Borrower, the interest rate applicable at the time to Loans comprising such Borrowing and (ii) in the case of Borrowingsuch 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.
(be) Each Notice The failure of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound any Lender to make a borrowing in accordance therewith. Each the Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall 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 Lenders simultaneously and proportionately to their Pro Rata Shares date of the Commitment for the applicable Classsuch Borrowing, it being understood that but no Lender shall be responsible for any default by the failure of any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required Loan to be made by it by such other Lender on the terms date of this Agreement regardless of the failure by any other LenderBorrowing.
Appears in 1 contract
Making the Loans. (a) The Borrower shall give the Administrative Agent prior telephonic notice (immediately confirmed Except as otherwise provided in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")Section 2.03(c), (i) each Borrowing shall be made on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Datenotice, (ii) given not later than 12:00 (x) noon (New York City time) ten 10 on the third Business Days Day (in the case of the proposed Borrowing to be made on the Closing Date, 9:00 A.M. (New York City time) one Business Day (or such shorter period as is approved by the Agent)) prior to the proposed date for borrowing of the second drawing proposed Borrowing in the case of the Tranche A Term a Borrowing consisting of Eurocurrency Rate Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and or (iiiy) not later than 12:00 noon (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding proposed Borrowing in the month case of a Borrowing consisting of Base Rate Loans, by the Borrower to the Agent, which shall give to each Appropriate Lender prompt notice thereof by fax or e-mail. Each such notice of a Borrowing (a “Notice of Borrowing”) shall be by telephone, confirmed immediately in which writing, or fax in substantially the proposed borrowing is form of Exhibit B hereto (or in such other form as may be acceptable to occur the Agent), specifying therein the requested (ori) date and Facility of such Borrowing, for any (ii) Type of Loans comprising such Borrowing, (iii) aggregate amount of such Borrowing, and (iv) in the abovecase of a Borrowing consisting of Eurocurrency Rate Loans, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 initial Interest Period. Each Appropriate Lender shall (1) before noon (New York City time) on the borrowing date of such Borrowing, in the proposed Loan)case of a Borrowing consisting of Eurocurrency Rate Loans and (2) before 2:00 P.M. (New York City time) on the date of such Borrowing, in the case of a Borrowing consisting of Base Rate Loans, make available for the account of its Applicable Lending Office to the Agent at the applicable Agent’s Account, in same day funds, such Lender’s ratable portion of such Borrowing. Such 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 the Borrower at the Agent’s address referred to in Section 9.02 or at the applicable Payment Office, as the case may be.
(b) Anything in subsection (a) above to the contrary notwithstanding, (i) the Borrower may not select Eurocurrency Rate Loans for any Borrowing if the aggregate amount of such Borrowing is less than the Borrowing Minimum or if the obligation of the Lenders to make Eurocurrency Rate Loans shall then be suspended pursuant to Section 2.08 or 2.12, and (ii) the Eurocurrency Rate Loans may not be outstanding as part of more than six separate Term Borrowings and ten separate Revolving Credit Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and shall specify (i) binding on the principal amount of the proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSIONBorrower. be a Reference Rate Loan or a LIBOR Rate Loan and, in In the case of a LIBOR any Borrowing that the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate LoanLoans, the initial Interest Period with respect theretoBorrower shall indemnify each Appropriate Lender against any loss, (iii) the use cost or expense incurred by such Lender as a result of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, and, with respect to: (A) the Tranche A Term Loans, must be any failure to fulfill on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following before the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of specified in such Notice of BorrowingBorrowing for such Borrowing the applicable conditions set forth herein, including the requested date any loss (including loss of margin), cost or expense incurred by reason of the proposed Tranche B Term liquidation or reemployment of deposits or other funds acquired by such Lender to fund the Loan and the amount thereof to be made by such Lender as part of such Borrowing when such Loan, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from an Appropriate Lender prior to the time of any Borrowing that such Lender will not make available to the Agent such Lender. Notwithstanding the above’s ratable portion of such Borrowing, the Borrower cannot request more than two Agent may assume that such Lender has made such portion available to the Agent on the date of such Borrowing in accordance with subsection (2a) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent of this Section 2.02 and the Lenders may act without liability Agent may, in reliance upon such assumption, make available to the basis of writtenBorrower 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, telecopied or telephonic notice believed by such Lender and the Administrative Borrower severally agree to repay to the Agent in good faith to be forthwith on demand such corresponding amount together with interest thereon, for each day from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower date such amount is made available to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice date such amount is repaid to the contrary. The Administrative Agent and Agent, at (i) in the Lenders shall have no duty to verify the authenticity case of the signature appearing on any written Notice Borrower, the higher of Borrowing(A) the interest rate applicable at the time to the Loans comprising such Borrowing and (B) the cost of funds incurred by the Agent in respect of such amount 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.
(be) Each Notice The obligations of Borrowing the Lenders hereunder to make Loans and to make payments pursuant to this Section 2.02 shall be irrevocable 9.04(c) are several and the Borrower shall be bound not joint. The failure of any Appropriate Lender to make a borrowing in accordance therewith. Each any Loan or to make any payment under Section 9.04(c) on any date required hereunder shall be made in a minimum amount not relieve any other Appropriate Lender of $25,000,000 its corresponding obligation to do so on such date and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by the failure of any other Lender in that other Lender's obligations to make a its Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lenderits payment under Section 9.04(c).
Appears in 1 contract
Making the Loans. (a) The Each Borrowing shall be made on notice, given by the Borrower shall give to the Administrative Agent not later than (i) 11:00 A.M. (Phoenix time) on the fourth (4th) Business Day prior telephonic to the date of the proposed Borrowing in the case of Eurodollar Rate Loans, and (ii) 11:00 A.M. (Phoenix time) on the second (2nd) Business Day prior to the date of the proposed Borrowing in the case of Base Rate Loans. Each such notice (immediately confirmed in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing"))) shall be in substantially the form of Exhibit H, specifying therein (i) on the Effective Date for a portion date of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Datesuch proposed Borrowing, (ii) not later than 12:00 noon (New York City time) ten 10 Business Days prior to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal aggregate amount of the such proposed Loan, (ii) whether the Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of a LIBOR Rate Loan, the initial Interest Period with respect theretoBorrowing, (iii) the use of the proceeds of such proposed Loanamount thereof, if any, requested to be Eurodollar Rate Loans, and (iv) the proposed borrowing date, which must initial Interest Period or Periods for any such Eurodollar Rate Loans. The Loans shall be a Business Day, and, with respect to: made as Base Rate Loans unless (Asubject to Section 2.12) the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day of the calendar month following the date of the Notice of Borrowing. The Administrative Agent Borrowing specifies that all or a pro rata portion thereof shall promptly notify each Lender of such Notice of Borrowingbe Eurodollar Rate Loans; provided, including however, that the requested date aggregate of the proposed Tranche B Term Loan and the amount thereof to Eurodollar Rate Loans for each Interest 41 Period must be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum an amount of not less than $25,000,000 and shall be in 2,500,000 or an integral multiple of $1,000,000 100,000 in excess thereof.
(cb) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement The Administrative Agent shall be made by the Lenders simultaneously and proportionately give to their Pro Rata Shares each Lender prompt notice of the Commitment for Administrative Agent's receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunderinterest rate under Section 2.9, and each Lender's Ratable Portion of the proposed Borrowing. Each Lender shall, before 12:00 Noon (Phoenix time) on the date of the proposed Borrowing, make available for the account of its Applicable Lending Office to the Administrative Agent at its address referred to in Section 11.2, in immediately available funds, such Lender's Ratable Portion of such proposed Borrowing. By 1:00 PM (Phoenix time) in the case of Eurodollar Rate Loans and Base Rate Loans, on the date specified by the Borrower in the Notice of Borrowing, subject to fulfillment of the applicable conditions set forth in Article III, the Administrative Agent will make such funds available to the Borrower at the Administrative Agent's aforesaid address; provided that in the event that the Administrative Agent shall not have received from a Lender such Lender's Ratable Portion of such Borrowing, the Administrative Agent shall be obligated under no obligation to make the Loans required to fund such Lender's Ratable Portion of such Borrowing.
(c) Each Base Rate Loan shall be made by it by the terms in an aggregate amount of this Agreement regardless not less than $1,000,000 or an integral multiple of the failure by any other Lender$100,000 in excess thereof.
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Samples: Revolving Credit Agreement (Sunstone Hotel Investors Inc)
Making the Loans. (a) The Borrower Administrative Borrower, on behalf of itself and the other Borrower, shall give the Administrative Agent prior telephonic telephone notice (immediately which notice, if requested by the Agent, must be promptly confirmed in writing, writing in substantially the form of Exhibit C I hereto (a "Notice of Borrowing")), ) (i) on the Effective Date for a portion of the Tranche A Term Loans specified in the Notice of Borrowing delivered on the Effective Date, (ii) not later than 12:00 noon (New York City time) ten 10 Business Days prior to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding proposed borrowing, in the month in which the proposed case of a borrowing is to occur consisting of Base Rate Loans, or (or, for any of the above, such shorter period as the Administrative Agent is willing to accommodate from time to time, but in no event ii) not later than 12:00 noon (New York City time) three Business Days prior to such proposed borrowing in the case of a borrowing consisting of Eurodollar Loans, provided that Eurodollar Loans will only be made on the borrowing date first Business Day of the proposed Loan)a month. Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed borrowing (which, in the case of a Eurodollar Loan, (ii) must be in a minimum amount of $5,000,000 and in multiples of $1,000,000 in excess thereof), whether the such Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Base Rate Loan or a LIBOR Rate Eurodollar Loan and, in the case of a LIBOR Rate Eurodollar Loan, the initial Initial Interest Period with respect theretofor such Eurodollar Loan, (iii) the use of the proceeds of such proposed Loan, and (iv) the proposed borrowing date, which must be a Business Day, Day and, with respect to: (A) in the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) case of a Tranche B Term Eurodollar Loan, must be at least the 5th first Business Day of a month, and the calendar month following Borrowers shall be bound to make a borrowing in accordance therewith. Notwithstanding anything to the date of contrary contained herein, prior to the Notice of BorrowingSyndication Date, all Loans shall be incurred and maintained as Base Rate Loans. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied telecopy or telephonic telephone notice believed by the Administrative Agent in good faith to be from the Administrative Borrower (or from any Authorized Officer officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower , and the Borrowers hereby waives waive the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(c) Except as otherwise provided in this Section 2.02(c), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Commitment for the applicable Class, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender.
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Making the Loans. (a) The Borrower shall give Section 2.02 of the Administrative Agent prior telephonic notice (immediately confirmed in writing, in substantially the form of Exhibit C hereto (a "Notice of Borrowing")), Financing Agreement is hereby amended as follows:
(i) on the Effective Date for a portion The second sentence of Section 2.02(a) of the Tranche A Term Loans specified Financing Agreement is hereby amended in the Notice of Borrowing delivered on the Effective Date, (ii) not later than 12:00 noon (New York City time) ten 10 Business Days prior its entirety to the proposed date for borrowing of the second drawing of the Tranche A Term Loans provided, that, such borrowing must occur within 30 days after the Effective Date; and (iii) not later than 12:00 noon (New York City time) on the date for each proposed Tranche B Term Loan, not later than the fifteenth (15th) day of the calendar month preceding the month in which the proposed borrowing is to occur (or, for any of the above, such shorter period read as the Administrative Agent is willing to accommodate from time to time, but in no event later than 12:00 noon (New York City time) on the borrowing date of the proposed Loan). follows: "Such Notice of Borrowing shall be irrevocable and shall specify (i) the principal amount of the proposed Loan (which, in the case of a LIBOR Rate Loan, must be in a minimum amount of $1,000,000 and in integral multiples of $100,000 in excess thereof), (ii) whether the such Loan is requested to [***] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND FILED SEPARATELY WITH THE COMMISSION. be a Reference Rate Loan or a LIBOR Rate Loan and, in the case of a LIBOR Rate Loan, the initial Interest Period with respect thereto, (iii) in the case of Loans requested on the Effective Date, the Fourth Amendment Effective Date, the Second Draw Date, the Supplemental Term Loan Second Draw Date or the Supplemental Term Loan Final Draw Date, whether such Loan is requested to be a Revolving Loan, the Term Loan or the Supplemental Term Loan, (iv) the use of the proceeds of such proposed Loan, and (ivv) the proposed borrowing date, which must be a Business Day, and, (x) with respect to: (A) to the Tranche A Term Loans, must be on or within 30 days after the Effective Date and (B) a Tranche B Term Loan, must be at least the 5th Business Day Effective Date or the Second Draw Date and (y) with respect to the Supplemental Term Loan, must be the Fourth Amendment Effective Date, the Supplemental Term Loan Second Draw Date or the Supplemental Term Loan Final Draw Date."
(ii) Section 2.02(c)(i) of the calendar month following the date of the Notice of Borrowing. The Administrative Agent shall promptly notify each Lender of such Notice of Borrowing, including the requested date of the proposed Tranche B Term Loan and the amount thereof Financing Agreement is hereby amended in its entirety to be made by such Lender. Notwithstanding the above, the Borrower cannot request more than two (2) Tranche B Term Loans in any one calendar month or more than three (3) Tranche B Term Loans in the aggregate. The Administrative Agent and the Lenders may act without liability upon the basis of written, telecopied or telephonic notice believed by the Administrative Agent in good faith to be from the Borrower (or from any Authorized Officer thereof designated in writing purportedly from the Borrower to the Administrative Agent). The Borrower hereby waives the right to dispute the Administrative Agent's record of the terms of any such telephonic Notice of Borrowing. The Administrative Agent and each Lender shall be entitled to rely conclusively on any Authorized Officer's authority to request a Loan on behalf of the Borrower until the Administrative Agent receives written notice to the contrary. The Administrative Agent and the Lenders shall have no duty to verify the authenticity of the signature appearing on any written Notice of Borrowing.read as follows:
(b) Each Notice of Borrowing pursuant to this Section 2.02 shall be irrevocable and the Borrower shall be bound to make a borrowing in accordance therewith. Each Loan shall be made in a minimum amount of $25,000,000 and shall be in an integral multiple of $1,000,000 in excess thereof.
(ci) Except as otherwise provided in this subsection 2.02(c) and Section 2.02(c2.01(a)(ii)(B), all Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares of the Total Revolving Credit Commitment, the Total Term Loan Commitment for and the applicable ClassTotal Supplemental Term Loan Commitment, as the case may be, it being understood that no Lender shall be responsible for any default by any other Lender in that other Lender's obligations to make a Loan requested hereunder, nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in that other Lender's obligation to make a Loan requested hereunder, and each Lender shall be obligated to make the Loans required to be made by it by the terms of this Agreement regardless of the failure by any other Lender."
Appears in 1 contract
Samples: Financing Agreement (Aaipharma Inc)
