|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/27/2019|
may, at the direction of the Required Lenders in their sole discretion, elect to accept as timely requests that are received later than 11:00 a.m. on the applicable Business Day and (iii) no Notice of Borrowing shall be delivered to any Lender during the hours of 9:00 a.m. through 4:00 p.m., New York City time, on any Business Day. At Agent’s election, in lieu of delivering the above-described written request, any Authorized Person may give Agent telephonic notice of such request by the required time. In such circumstances, Borrower agrees that any such telephonic notice will be confirmed in writing within one (1) Business Day of the giving of such telephonic notice, but the failure to provide such written confirmation shall not affect the validity of the request. The Borrowing of any LIBOR Rate Loan shall be subject to the provisions of Section 2.12.
(b) Funding of Borrowings. After receipt of a request for a Borrowing pursuant to Section 2.3(a), Agent shall promptly notify the Lenders by telecopy, telephone, email, or other electronic form of transmission, of the requested Borrowing; provided that no Notice of Borrowing shall be delivered to any Lender during the hours of 9:00 a.m. through 4:00 p.m., New York City time, on any Business Day. Each Lender shall make each Loan to be made by it hereunder on the proposed Funding Date thereof by wire transfer of immediately available funds by 2:00 p.m. on the Business Day that is the requested Funding Date to the Designated Account or other applicable account in accordance with Section 3 or otherwise in accordance with such other funding arrangements as mutually agreed among the relevant parties; provided, that no Lender shall have an obligation to make any Loan if (i) one or more of the applicable conditions precedent set forth in Section 3 has not been or will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived in accordance with the applicable provisions of Section 3 or (ii) the requested Borrowing would exceed the undrawn amount of such Lender’s Commitments on such Funding Date or the amount authorized to be borrowed hereunder pursuant to the applicable DIP Order. The Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to the Designated Account or other applicable account in accordance with Section 3 or otherwise in accordance with such other funding arrangements as mutually agreed among the relevant parties. Nothing herein shall be deemed to obligate any Lender to obtain the funds for its Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Loan in any particular place or manner.
(f) Notation. Agent, as a non-fiduciary agent for Borrower, shall maintain a register showing the principal amount of the Loans, owing to each Lender, and the interests therein of each Lender, from time to time and such register shall, absent manifest error, conclusively be presumed to be correct and accurate.
(g) Defaulting Lenders.
(i) Notwithstanding the provisions of Section 2.4(b)(iii), Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrower to Agent for the Defaulting Lender’s benefit or any proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments (A) first, to each Non-Defaulting Lender ratably in accordance with their Pro Rata Share (but, in each case, only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other Non-Defaulting Lender), (B) to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be advanced to or