Procedure for Term Loan Borrowing The Borrower shall give the Administrative Agent irrevocable notice (a) which notice, in the case of Term Loans to be made on the Restatement Effective Date, must be received by the Administrative Agent prior to 12:00 Noon, New York City time, one Business Day prior to the anticipated Restatement Effective Date with respect to ABR Loans and three Business Days prior to the anticipated Restatement Effective Date with respect to Eurodollar Loans, requesting that the Term Lenders (other than Term Lenders that are only converting Existing Term Loans) make Term Loans on the Restatement Effective Date, or (b) in the case of Incremental Term Loans, which notice must be received by the Administrative Agent prior to 12:00 Noon, New York City time, one Business Day prior to the anticipated Increased Facility Closing Date for such Loans with respect to any such Loans that are ABR Loans and three Business Days prior to such anticipated Increased Facility Closing Date with respect to Eurodollar Loans, requesting that the relevant Term Lenders make such Incremental Term Loans on the applicable Increased Facility Closing Date, and in each case specifying the amount to be borrowed. Upon receipt of such notice the Administrative Agent shall promptly notify each Term Lender thereof. Not later than 12:00 Noon, New York City time, on the Restatement Effective Date each relevant Term Lender shall make available to the Administrative Agent at the Funding Office an amount in immediately available funds equal to the Term Loan to be made by such Lender. The Administrative Agent shall make available to the Borrower the aggregate of the amounts made available to the Administrative Agent by the Term Lenders in like funds.
Accounting Terms; Utilization of GAAP for Purposes of Calculations Under Agreement Except as otherwise expressly provided in this Agreement, all accounting terms not otherwise defined herein shall have the meanings assigned to them in conformity with GAAP. Financial statements and other information required to be delivered by Company to Lenders pursuant to clauses (ii), (iii) and (xii) of subsection 6.1 shall be prepared in accordance with GAAP as in effect at the time of such preparation (and delivered together with the reconciliation statements provided for in subsection 6.1(v)). Calculations in connection with the definitions, covenants and other provisions of this Agreement shall utilize GAAP as in effect on the date of determination, applied in a manner consistent with that used in preparing the financial statements referred to in subsection 5.3. If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and Company, Administrative Agent or Requisite Lenders shall so request, Administrative Agent, Lenders and Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of Requisite Lenders), provided that, until so amended, such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and Company shall provide to Administrative Agent and Lenders reconciliation statements provided for in subsection 6.1(v).
Procedure for Borrowings Each Borrowing shall be made by a written request by an Authorized Person delivered to Agent and received by Agent no later than (i) 12:00 noon on the Business Day that is the requested Funding Date in the case of a request for a Swing Loan or a Revolving Loan that is a Base Rate Loan and (ii) 12:00 noon on the Business Day that is three (3) Business Days (or solely with respect to a Borrowing on the Closing Date, one (1) Business Day) prior to the requested Funding Date in the case of a Revolving Loan that is a LIBOR Rate Loan, in each case, specifying (A) the amount of such Borrowing, (B) the requested Funding Date (which shall be a Business Day), (C) whether such Borrowing is to be a Borrowing of Base Rate Loans or a Borrowing of LIBOR Rate Loans, (D) in the case of a Borrowing of LIBOR Rate Loans, the initial Interest Period to be applicable thereto, which shall be a period contemplated by the definition of the term “Interest Period” and (E) whether the Borrowing is of Tranche A Revolving Loans or Tranche B Revolving Loans; provided that if any Tranche B Facility exists at such time, such Borrowing shall be Tranche A Revolving Loans unless the outstanding principal amount of Tranche B Revolving Loans is less than the Tranche B Line Cap, in which case up to an amount equal to the Tranche B Line Cap minus the outstanding principal amount of Tranche B Revolving Loans of such Revolving Loans shall be Tranche B Revolving Loans, and the remaining amount of such Revolving Loans shall be Tranche A Revolving Loans; provided that Agent may, in its sole discretion, elect to accept as timely requests that are received later than the times specified above on the applicable Business Day. In lieu of delivering the above-described written request, any Authorized Person may give Agent electronic notice of such request by the required time. In such circumstances, Borrowers agree that any such electronic notice will be confirmed in writing within 24 hours of the giving of such electronic notice, but the failure to provide such written confirmation shall not affect the validity of the request.
Borrowing Mechanics for Term Loans (i) Lead Borrower shall deliver to Administrative Agent a fully executed Funding Notice no later than (A) if such Funding Notice requests a LIBOR Rate Loan, three (3) Business Days prior to the Closing Date or (B) if such Funding Notice requests a Base Rate Loan, two (2) Business Days prior to the Closing Date, or, in each case, such later date as Administrative Agent may agree. Except as otherwise provided herein, a Funding Notice for a Term Loan that is a LIBOR Rate Loan shall be irrevocable on and after the related Interest Rate Determination Date, and Lead Borrower shall be bound to make a borrowing in accordance therewith. Promptly upon receipt by Administrative Agent of such Funding Notice, Administrative Agent shall notify each Lender of the proposed borrowing. Administrative Agent and Lenders (A) may act without liability upon the basis of written, facsimile, or telephonic notice believed by Administrative Agent in good faith to be from Lead Borrower (or from any Authorized Officer thereof designated in writing purportedly from Lead Borrower to Administrative Agent), (B) shall be entitled to rely conclusively on any Authorized Officer’s authority to request a Term Loan on behalf of Lead Borrower until Administrative Agent receives written notice to the contrary, and (C) shall have no duty to verify the authenticity of the signature appearing on any written Funding Notice.
(ii) Each Lender shall make its Term Loan available to Administrative Agent not later than noon (New York time) on the Closing Date, by wire transfer of same day funds in Dollars, at Administrative Agent’s Principal Office (as identified on Appendix B). Upon satisfaction or waiver of the conditions precedent specified herein, Administrative Agent shall make the proceeds of the Term Loans available to Lead Borrower by the close of business on the Closing Date by causing an amount of same day funds in Dollars equal to the proceeds of all such Loans received by Administrative Agent from Lenders to be credited (A) in the case of Loans made on the Closing Date, in accordance with the provisions of the Flow of Funds Agreement or (B) after the Closing Date, to the account of Lead Borrower at Administrative Agent’s Principal Office or to such other account as may be designated in writing to Administrative Agent by Lead Borrower.
Procedure for Advances (a) On any Business Day during the Revolving Period (unless a Suspension Period), the Borrower may request that the Lenders make Advances, subject to and in accordance with the terms and conditions of Sections 2.01 and 2.02 and subject to the provisions of Article III hereof.
(b) Each Advance shall be made upon delivery of an irrevocable request for an Advance from the Borrower to the Administrative Agent and each Lender Agent, with a copy to the Collateral Agent and the Collateral Custodian, (i) with respect to a proposed Foreign Currency Loan Advance, no later than 2:00 p.m. three Business Days’ prior to the proposed date of such Advance, and (ii) with respect to all other proposed Advances, no later than 2:00 p.m. on the Business Day immediately prior to (or by 10:00 am on the same Business Day of) the proposed date of such Advance (which shall be a Business Day), in the form of a Notice of Borrowing; provided that the Borrower shall not request same day funding more than once in any Month. Each Notice of Borrowing shall include a duly completed Borrowing Base Certificate (updated to the date such Advance is requested and giving pro forma effect to the Advance requested and the use of the proceeds thereof), and shall specify:
(i) the aggregate amount of such Advance, which amount shall not cause the Advances Outstanding to exceed the Borrowing Base; provided that the amount of such Advance must be at least equal to $500,000 (or its Dollar Equivalent);
(ii) the proposed date of such Advance and, if such Advance is to be a Fixed LIBOR Advance, the related Fixed Period (it being understood that if notice of such Advance is not provided at least two Business Days prior to the proposed Cut-Off Date, then such Advance shall be a Daily LIBOR Advance for two Business Days following which the Advance shall convert to a Fixed LIBOR Advance);
(iii) the proposed Currency of such Advance;
(iv) during the continuance of any CQT Non-Qualification Period and with respect to an Advance proposed to be funded in connection with the addition of a Loan Asset to the Collateral Portfolio (whether by sale or contribution), a written certification of the Servicer demonstrating that such Advance results in Collateral Quality Improvement; and
(v) a representation that all conditions precedent for an Advance described in Article III hereof have been satisfied. No later than 1:00 p.m. on the date of each Advance, upon satisfaction of the applicable conditions set forth in Article III, (i) on the Closing Date and during the Conforming Funding Period, each Conduit Lender may, or the related Liquidity Banks and Institutional Lender shall, in accordance with instructions received by the Lender Agent for such Lenders from the Borrower, make available to the Borrower, in same day funds, an amount equal to such Lender’s Commitment Percentage of such Advance, by payment into the account which the Borrower has designated in writing, and (ii) during the Delayed Funding Period, each Conduit Lender may, or the related Liquidity Banks and Institutional Lender shall (in each case, other than Delayed Funding Lenders and other members of a Delayed Funding Lender Group), in accordance with instructions received by the Lender Agent for such Lenders from the Borrower, make available to the Borrower, in same day funds, an amount equal to such Lender’s Pro Rata Share of such Advance, by payment into the account which the Borrower has designated in writing.
(c) The Advances shall bear interest at the Yield Rate.
(d) Subject to Section 2.18 and the other terms, conditions, provisions and limitations set forth herein, the Borrower may borrow, repay or prepay and reborrow Advances without any penalty, fee or premium on and after the Closing Date and prior to the end of the Revolving Period; provided, that the repayment of any Foreign Currency Advance shall be made solely in the related Foreign Currency.
(e) A determination by the Administrative Agent or any Lender Agent of the existence of any Eurodollar Disruption Event (any such determination to be communicated to the Borrower by written notice from the Administrative Agent or such Lender Agent promptly after the Administrative Agent or such Lender Agent learns of such event), or of the effect of any Eurodollar Disruption Event on its making or maintaining Advances at LIBOR, shall be conclusive absent manifest error.
(f) The obligation of each Liquidity Bank and Institutional Lender to remit its Pro Rata Share of any Advance shall be several from that of each other Liquidity Bank and Institutional Lender and the failure of any Liquidity Bank or Institutional Lender to so make such amount available to the Borrower shall not relieve any other Liquidity Bank or Institutional Lender of its obligation hereunder.
Amortization of Term Loans (a) Subject to adjustment pursuant to paragraph (c) of this Section, the Borrowers shall repay Term Loan Borrowings on the dates and in the amounts set forth on Annex I, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment; provided that if any such date is not a Business Day, such payment shall be due on the next preceding Business Day.
(b) To the extent not previously paid, all Term Loans shall be due and payable on the Term Maturity Date.
(c) Any prepayment of a Term Loan Borrowing of any Class (i) pursuant to Section 2.11(a)(i) shall be applied to reduce the subsequent scheduled and outstanding repayments of the Term Loan Borrowings of such Class to be made pursuant to this Section as directed by the Borrowers (and absent such direction in direct order of maturity) and (ii) pursuant to Section 2.11(c) or 2.11(d) shall be applied to reduce the subsequent scheduled and outstanding repayments of the Term Loan Borrowings of such Class to be made pursuant to this Section, or, except as otherwise provided in any Refinancing Amendment, pursuant to the corresponding section of such Refinancing Amendment, in direct order of maturity.
(d) Prior to any repayment of any Term Loan Borrowings of any Class hereunder, the Borrower shall select the Borrowing or Borrowings of the applicable Class to be repaid and shall notify the Administrative Agent by telephone (confirmed by hand delivery or facsimile) of such election not later than 2:00 p.m., New York City time, two Business Day before the scheduled date of such repayment. In the absence of a designation by the Borrowers as described in the preceding sentence, the Administrative Agent shall make such designation in its reasonable discretion with a view, but no obligation, to minimize breakage costs owing under Section 2.16. Each repayment of a Borrowing shall be applied ratably to the Loans included in the repaid Borrowing. Repayments of Term Loan Borrowings shall be accompanied by accrued interest on the amount repaid.
Repayment of Term Loans 25 2.4 Revolving Commitments..........................................25 2.5 Procedure for Revolving Loan Borrowing.........................26 2.6 Commitment Fees, etc. .........................................26 2.7 Termination and Reduction of Commitments.......................27 2.8
Procedure for Revolving Borrowings The Borrower shall give the Administrative Agent written notice (or telephonic notice promptly confirmed in writing) of each Revolving Borrowing, substantially in the form of Exhibit 2.3 attached hereto (a “Notice of Revolving Borrowing”), (x) prior to 1:00 p.m. one (1) Business Day prior to the requested date of each Base Rate Borrowing and (y) prior to 1:00 p.m. three (3) Business Days prior to the requested date of each Eurodollar Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall specify (i) the aggregate principal amount of such Borrowing, (ii) the date of such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the duration of the initial Interest Period applicable thereto (subject to the provisions of the definition of Interest Period). Each Revolving Borrowing shall consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may request. The aggregate principal amount of each Eurodollar Borrowing shall not be less than $5,000,000 or a larger multiple of $250,000, and the aggregate principal amount of each Base Rate Borrowing shall not be less than $1,000,000 or a larger multiple of $100,000; provided that Base Rate Loans made pursuant to Section 2.4 or Section 2.22(d) may be made in lesser amounts as provided therein. At no time shall the total number of Eurodollar Borrowings outstanding at any time exceed eight (8). Promptly following the receipt of a Notice of Revolving Borrowing in accordance herewith, the Administrative Agent shall advise each Lender of the details thereof and the amount of such Lender’s Revolving Loan to be made as part of the requested Revolving Borrowing.
Procedure for Borrowing (a) The Borrower may request a borrowing to be made on any Business Day during the Commitment Period (each such date a “Funding Date”) by delivering to the Administrative Agent and the Lender a Notice of Borrowing substantially in the form of Exhibit B (a “Notice of Borrowing”), appropriately completed, which Notice of Borrowing must be received no later than 2:00 p.m. (Washington, D.C. time) five (5) Business Days’ prior to the requested Funding Date, which notice, if not withdrawn prior to the date which is two (2) Business Days’ prior to such Funding Date, shall thereafter become irrevocable. Each Loan shall be in an amount equal to $5,000,000 (or, if the Available Amount is less than such amount, such lesser amount) or a whole multiple of $1,000,000 in excess thereof.
(b) Upon the Borrower’s request for a borrowing pursuant to Section 2.03(a), and assuming all conditions precedent to the making of such Loan have been satisfied (or waived by the Lender in accordance with Section 10.01), not later than 2:00 p.m. (Washington, D.C. time) on the requested Funding Date, the Lender shall make the proceeds of such Loan available to the Borrower in immediately available funds, via wire transfer (pursuant to the wire transfer instructions set forth in Section 2.03(c)).
(c) The Borrower hereby directs the Lender to send the proceeds of all Loans (i) by wire transfer to the account specified on Schedule A or (ii) to such other account as shall be designated by the Borrower in a Notice of Borrowing.
(d) The Borrower agrees to compensate the Lender for the losses (as calculated pursuant to the next succeeding sentence) that the Lender incurs as a consequence of a failure of the Borrower to make a borrowing of Loans of the requested amount after the Borrower has delivered a Notice of Borrowing which has become irrevocable in accordance with Section 2.03(a). Such losses shall be calculated as follows: an amount equal to the product of (i) the sum of (A) the weighted average cost (as determined by the Lender in its sole discretion) of all nominal marketable Indebtedness issued by UST over the preceding thirty (30) days, plus (B) 1.00%, multiplied by (ii) the quotient of (A) the number of days constituting the period from the date such Notice of Borrowing delivered by the Borrower has become irrevocable to the date the Borrower defaults in making a borrowing pursuant to such Notice of Borrowing, divided by (B) three hundred sixty (360) days, multiplied by (iii) the amount not so borrowed. A certificate as to the amounts payable pursuant to this Section 2.03(d) submitted to the Borrower by the Lender shall be conclusive in the absence of manifest error. The covenant in this Section 2.03(d) shall survive the termination of this Loan Agreement and the payment of the Loans and all other amounts payable hereunder.
Definitions and Accounting Terms Section 1.01.
