Borrowings. (a) The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three Business Days prior to each Borrowing to be comprised of LIBOR Loans and one Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 2 contracts

Samples: Credit Agreement (Swisher Hygiene Inc.), Credit Agreement (Swisher Hygiene Inc.)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, and each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Tranche 1 Commitments); (ii) if the applicable Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the applicable Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Tranche 1 Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Tranche 1 Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.2 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the applicable Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 2 contracts

Samples: Credit Agreement (Platinum Underwriters Holdings LTD), Credit Agreement (Platinum Underwriters Holdings LTD)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject~~ Subject to the terms and conditions of this Agreement, Dollar Loans shall at the option of OCA be either Base Rate Loans or LIBOR ~~Loans (each, a “Type” of Loan)~~Loans, provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same ~~Type. The Swingline~~ Type (with regard to both currency and interest rate option, in the case of Foreign Currency Loans), and (ii) no Borrowing of LIBOR Loans ~~shall~~ may be made at any time prior to the third (3rd) Business Day after the Closing Date, and ~~maintained as LIBOR Market Index Rate~~ no Borrowing of Foreign Currency Loans may be made at ~~all times~~any time prior to the fourth (4th) Business Day after the Closing Date. (b) In order to make a Borrowing (other than ~~(w)~~ Borrowings involving continuations or conversions of ~~Swingline~~ outstanding Fixed Rate Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.52.11), the applicable Borrower will give the ~~Administrative~~ Agent written notice not later than 11:00 a.m., Charlotte time, ~~three~~ the Applicable Number of Business Days prior to each ~~Borrowing to be comprised of LIBOR Loans and one Business Day prior to each Borrowing to be comprised of Base Rate Loans~~Borrowing; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of ~~LIBOR~~ Fixed Rate Loans, the initial Interest Period to be applicable thereto, ~~and~~ (3) in the case of a Borrowing of Foreign Currency Loans, the applicable Foreign Currency, and (4) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments)~~, and~~ ; the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; and the aggregate principal amount of each Borrowing comprised of Foreign Currency Loans shall not be less than a Dollar Amount of $1,000,000; (ii) if no more than $5,000,000 in aggregate Dollar Amount of proceeds from any Borrowing may be used to fund the ~~Borrower shall have failed~~ Acquisition Amount (in whole or in part) in connection with any single Permitted Acquisition (provided that, in connection with any request to ~~designate~~ the ~~Type~~ Required Lenders for their approval of ~~Loans comprising~~ an Acquisition as a ~~Borrowing~~Permitted Acquisition pursuant to SECTION 6.9(C), the Borrower ~~shall be deemed to have requested~~ may also request that the Lenders permit a Borrowing ~~comprised~~ in excess of ~~Base Rate Loans~~$5,000,000 to fund all or a portion of the Acquisition Amount in connection therewith); and (iii) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of ~~LIBOR~~ Fixed Rate Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) ~~Not~~ In the case of each Borrowing of Dollar Loans, not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in SECTION 12.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Dollar Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to ~~the Swingline Lender~~ OCA in accordance with SECTION 2.3(A) and in like funds as received by the ~~Administrative~~ Agent. In the case of each Borrowing of Foreign Currency Loans, ~~which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary~~not later than 10:00 a.m., Local Time, on the ~~relevant~~ requested Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the ~~Administrative~~ Agent at the ~~Payment Office~~ office of its applicable Correspondent (or at such other location as the Agent may designate) an amount, in ~~Dollars~~ the applicable Foreign Currency and in immediately available funds, equal to ~~its respective participation~~the amount of the Foreign Currency Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the ~~Swingline Lender~~ applicable Borrower in accordance with SECTION 2.3(A) and in like funds as received by the ~~Administrative~~ Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Orthodontic Centers of America Inc /De/)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan) shall~~shall be denominated in Dollars and, at the option of the ~~Borrower and subject to~~ applicable Borrower, the ~~terms and conditions of this Agreement,~~ Revolving Loans shall be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. ~~The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b)~~ In order to make a Borrowing (other than (wx) Borrowings of Swingline Loans, which shall be made pursuant to Section ~~2.2(d~~2.02(c)), (xy) Borrowings for the purpose of ~~repaying~~ paying Refunded Swingline Loans, which shall be made pursuant to Section ~~2.2(e~~2.02(d), and (yz) ~~Borrowings involving~~ continuations or conversions of outstanding Revolving Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the applicable Borrower ~~will give~~ shall deliver to the Administrative Agent ~~written~~ a fully executed, irrevocable notice ~~not~~ of borrowing in the form of Exhibit B-1 (the “Notice of Borrowing”) no later than 11:00 a.m.~~, Charlotte time~~, three Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a the Notice of Borrowing, the Administrative Agent ~~will~~ shall promptly notify each ~~applicable Lender~~ Bank of the proposed ~~Borrowing~~borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate~~ each Borrowing shall be in a principal amount of ~~each Borrowing comprised of Base Rate Loans shall not be less than~~ $~~1,000,000 or, if greater, an~~ 10,000,000 or a higher integral multiple of $~~100,000 in excess thereof~~ 1,000,000 (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unused Commitments)~~, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (ii) if the applicable Borrower shall have failed to designate the Type of Revolving Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Revolving Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the applicable Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (cb) Not later than 1:00 ~~p.m., Charlotte time,~~ p.m. on the requested Borrowing Date, each ~~applicable Lender~~ Bank will make available to the Administrative Agent at the ~~Payment Office~~ Administrative Agent’s Account an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Pro Rata Share of such requested Borrowing as its Revolving Loan or Revolving Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.02 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.01), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the applicable Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent~~Agent in accordance with Section 2.03(a). (dc) In order to make a Borrowing of a Swingline Loan, the applicable Borrower will give the Administrative Agent (and the Swingline ~~Lender~~Bank, if the Swingline ~~Lender~~ Bank is not also the Administrative Agent) written notice not later than ~~11:00 a.m., Charlotte time~~1:00 p.m., on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall ~~not~~ be ~~less than~~ $~~500,000 and, if greater, shall be in an~~ 5,000,000 or a higher integral multiple of $~~100,000 in excess thereof~~ 500,000 (or, if less, in the amount of the ~~Unutilized~~ Unused Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than ~~1:00~~ 3:00 p.m.~~, Charlotte time~~, on the requested Borrowing Date, the Swingline ~~Lender~~ Bank will make available to the Administrative Agent at the ~~Payment Office~~ Administrative Agent’s Account an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline ~~Lender~~ Bank has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the applicable Borrower in accordance with Section ~~2.3(a~~2.03(a) and in like funds as received by the Administrative Agent. No Swingline Loan may be used to refinance an outstanding Swingline Loan. (ed) With respect to any outstanding Swingline Loans, the Swingline ~~Lender~~ Bank may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the applicable Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline ~~Lender~~Bank) and each other ~~Lender~~ Bank (on behalf of, and with a copy to, the applicable Borrower), not later than 11:00 a.m.~~, Charlotte time~~, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the applicable Borrower) requesting the ~~Lenders~~ Banks to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline ~~Lender~~ Bank requests to be repaid. Not later than 1:00 p.m., ~~Charlotte time,~~ on the requested Borrowing Date, each ~~Lender~~ Bank (other than the Swingline ~~Lender~~Bank) will make available to the Administrative Agent at the ~~Payment Office~~ Administrative Agent’s Account an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such ~~Lender~~Bank. To the extent the ~~Lenders~~ Banks have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline ~~Lender~~ Bank in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline ~~Lender~~Bank’s ratable share thereof, in its capacity as a ~~Lender~~Bank) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline ~~Lender~~Bank), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline ~~Lender~~ Bank shall be recovered by or on behalf of the applicable Borrower from the Swingline ~~Lender~~ Bank in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the ~~Lenders~~ Banks in the manner contemplated by Section ~~2.15(b~~2.14(c). (fe) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to ~~the~~ any Borrower, Revolving Loans are not made pursuant to Section ~~2.2(e~~2.02(d) in an amount sufficient to repay any amounts owed to the Swingline ~~Lender~~ Bank in respect of any outstanding Swingline Loans, or if the Swingline ~~Lender~~ Bank is otherwise precluded for any reason from giving a notice on behalf of the applicable Borrower as provided for hereinabove, the Swingline ~~Lender~~ Bank shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline ~~Lender~~Bank), and each ~~Lender~~ Bank shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ~~ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time)~~ Pro Rata Share of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline ~~Lender~~Bank, each ~~Lender~~ Bank (other than the Swingline ~~Lender~~Bank) will make available to the Administrative Agent at the ~~Payment Office~~ Administrative Agent’s Account an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the ~~Lenders~~ Banks have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline ~~Lender~~ Bank in like funds as received by the Administrative Agent. In the event any such ~~Lender~~ Bank fails to make available to the Administrative Agent the amount of such ~~Lender~~Bank’s participation as provided in this Section ~~2.2(f~~2.02(e), the Swingline ~~Lender~~ Bank shall be entitled to recover such amount on demand from such ~~Lender~~Bank, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline ~~Lender~~ Bank until the date such amount is made available to the Swingline ~~Lender~~ Bank at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the applicable Borrower in respect of a Swingline Loan, the Swingline ~~Lender~~ Bank will pay to each ~~Lender~~ Bank that has acquired a participation therein such ~~Lender~~Bank’s ratable share of such payment. (gf) Notwithstanding any provision of this Agreement to the contrary, the obligation of each ~~Lender~~ Bank (other than the Swingline ~~Lender~~Bank) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section ~~2.2(e~~2.02(d) and each such ~~Lender~~Bank’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section ~~2.2(f~~2.02(e) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, ~~including, without limitation,~~ including (i) any set-off, counterclaim, recoupment, defense or other right that such ~~Lender~~ Bank may have against the Swingline ~~Lender~~Bank, the Administrative Agent, ~~the~~ any Borrower or any other Person for any reason whatsoever, (ii) the ~~occurrence or continuance~~ existence of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inin Section 2.02(a), or (iv) the failure of any conditions set forth in Section 4.02 or elsewhere herein to be satisfied.

Appears in 1 contract

Samples: Credit Agreement (ACE LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the ~~Administrative~~ Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in Section 11.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the ~~Administrative~~ Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Markel Corp)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan) shall~~shall be denominated in Dollars and, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., ~~Charlotte time,~~ three (3) Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of LIBOR Loans shall be in a principal amount not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the applicable Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the applicable Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 ~~p.m., Charlotte time,~~ p.m. on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.2 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the applicable Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Allied World Assurance Co Holdings, AG)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of~~ Whenever the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order desires to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z~~2.9) ~~Borrowings for~~ under the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Facility, the Borrower will give the ~~Administrative~~ Agent oral or written notice ~~not later than~~ (by telecopier or otherwise), prior to 11:00 a.m., Charlotte time, at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and at least one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 (or, if oral notice is given, shall be promptly followed, by telecopier or otherwise, with a writing in the form of Exhibit B-1) and shall be appropriately completed to specify (1i) the aggregate principal ~~amount, Class~~ amount and ~~initial~~ Type of the Loans to be made pursuant to such ~~Borrowing~~Borrowing (and, ~~(2)~~ in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, ) and (3ii) the requested date of the Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing hereunder (y) in the case of Borrowings comprised of Base Rate ~~Loans~~ Loans, shall not be less than $1,000,000 orand, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the ~~aggregate Commitments less the Aggregate Credit Exposure~~Total Unutilized Commitment), and (z) in the ~~aggregate principal amount~~ case of ~~each Borrowing~~ Borrowings comprised of LIBOR ~~Loans~~ Loans, shall not be less than $~~2,000,000 or~~5,000,000 and, if greater, shall be in an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (cb) ~~Not later than 1:00 p.m.~~Upon the receipt of a Notice of Borrowing, ~~Charlotte time~~the Agent will promptly notify each Lender of the proposed Borrowing, on of such Lender's Pro Rata Share thereof and of the ~~requested Borrowing Date, each applicable~~ other matters specified in the Notice of Borrowing. Each Lender will make the amount of its Pro Rata Share of such Borrowing available to the ~~Administrative~~ Agent at its office referred to in Section 10.4, for the ~~Payment Office an amount~~account of the Borrower, in Dollars and in immediately available funds, ~~equal~~ prior to 1:00 p.m, Charlotte time, on the ~~amount of the Loan or Loans to be made by such Lender~~Borrowing Date. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with ~~Section 2.3(a~~subsection (e) below and in like funds as received by the ~~Administrative~~ Agent. (dc) ~~In order~~ Unless the Agent has received, prior to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on ~~the requested~~ any Borrowing Date, ~~the Swingline~~ written notice from a Lender that such Lender will not make available to the ~~Administrative~~ Agent at its Pro Rata Share of the ~~Payment Office an amount~~relevant Borrowing (which notice shall, ~~in Dollars and in immediately available funds~~if so received, ~~equal~~ be forwarded promptly upon receipt to the ~~amount of~~ Borrower), the ~~requested Swingline Loan. To the extent the Swingline~~ Agent may assume that such Lender has made its Pro Rata Share of such ~~amount~~ Borrowing available to the ~~Administrative~~ Agent ~~as provided hereinabove~~on such Borrowing Date in accordance with subsection (b) above, and the ~~Administrative~~ Agent ~~will~~ may, in reliance upon such assumption, but shall not be obligated to, make ~~such~~ a corresponding amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing ~~Date in an aggregate amount equal~~ Date. If and to the ~~amount of~~ extent that such ~~Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date~~ Lender shall not have made such ~~notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make~~ Pro Rata Share available to the ~~Administrative~~ Agent, and the Agent ~~at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders~~ shall have made such ~~amounts~~ corresponding amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, ~~Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed~~ such Lender, on the one hand, and the Borrower, on the other (but without prejudice to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or Borrower's rights under ~~the Swingline Lender~~Section 2.17), ~~and each Lender shall be deemed~~ severally agree to ~~have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears~~ pay to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrower until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Agent, (i) if recovered from such Lender, at the Federal Funds Rate for the first three (3) Business Days and thereafter at the ~~Adjusted~~ Base ~~Rate applicable~~ Rate, and (ii) if recovered from the Borrower, at the rate of interest payable by the Borrower hereunder in respect of the Loans comprising such Borrowing. If such Lender shall repay to ~~Revolving Loans~~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. ~~Promptly following~~ Nothing in this subsection (c), however, shall relieve any Lender of its ~~receipt~~ obligation to make available to the Agent its Pro Rata Share of any ~~payment~~ Borrowing, subject to and in accordance with the terms hereof. (d) The failure of any Lender to make any Loan required to be made by or it as part of any Borrowing shall not relieve any other Lender of its obligation, if any, hereunder to make its Loan on ~~behalf~~ the respective Borrowing Date, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender as part of any Borrowing. (e) The Borrower hereby authorizes the Agent to disburse the proceeds of each Borrowing in accordance with the terms of any written instructions from any of the Authorized Officers, provided that the Agent shall not be obligated under any circumstances to forward amounts to any account not listed in an Account Designation Letter. Without limiting the obligation of the Borrower to confirm in ~~respect~~ writing any telephonic Notice of ~~a Swingline Loan~~Borrowing, the ~~Swingline Lender will pay~~ Agent may act without liability upon the basis of any telephonic Notice of Borrowing believed by the Agent in good faith to ~~each Lender that has acquired a participation therein~~ be from any such ~~Lender’s ratable share~~ officer prior to receipt of ~~such payment. (g) Notwithstanding~~ written confirmation. The Borrower may at any ~~provision of this Agreement~~ time deliver to the ~~contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying~~ Agent an Account Designation Letter listing any ~~Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase~~ additional accounts or deleting any accounts listed in a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inprevious Account Designation Letter.

Appears in 1 contract

Samples: Credit Agreement (Guaranty National Corp)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of~~ Whenever the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order desires to make a Borrowing (other than ~~(w)~~ continuations of outstanding Loans pursuant to SECTION 2.11, and Mandatory Borrowings for the purpose of repaying outstanding Swingline Loans, which shall be made pursuant to ~~Section 2.2(d~~SECTION 2.1(C)), ~~(x) Borrowings for~~ under the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)Revolving Credit Facility, the Borrower will give the ~~Administrative~~ Agent written notice ~~not later than 11:00 a.m.~~(by telecopier or otherwise), ~~Charlotte~~ prior to 12:00 noon, Charlotte, North Carolina local time, at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and at least one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, ~~a “Notice of Borrowing”~~an "Interest Rate Election Notice") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall be appropriately completed to specify (1i) the aggregate principal ~~amount, Class~~ amount and ~~initial~~ Type of the Loans to be made pursuant to such ~~Borrowing~~Borrowing (and, ~~(2)~~ in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto), (ii) the proposed use of the proceeds of the Borrowing, and (3iii) the requested date of the Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing hereunder (y) in the case of Borrowings comprised of Base Rate Loans, shall not be less than the lesser of the Total Unutilized Revolving Credit Commitment or $1,000,000 and, if greater than $1,000,000, shall be in an integral multiple of $500,000 in excess thereof, provided, that Borrowings of Swingline Loans shall not be less than $~~1,000,000 or~~50,000 and, if ~~greater~~greater than $50,000, shall be in an integral multiple of $~~100,000~~ 50,000 in excess ~~thereof~~ thereof, and (~~or, if less,~~ z) in the ~~amount~~ case of ~~the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing~~ Borrowings comprised of LIBOR ~~Loans~~ Loans, shall not be less than $~~2,000,000 or~~3,000,000 and, if ~~greater~~greater than $3,000,000, shall be in an integral multiple of $1,000,000 in excess thereof; (ii) with respect to each individual Acquisition financed in whole or in part with proceeds of Loans, the aggregate principal amount of the Loans incurred to finance such Acquisition shall not exceed $7,500,000 without the consent of Required Lenders; (iii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans~~; and~~; (~~iii~~iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month; and (v) LIBOR Loans under the Revolving Credit Facility may not be outstanding under more than five (5) separate Interest Periods at any one time. (cb) ~~Not later than 1:00 p.m.~~Upon the receipt of an Interest Rate Election Notice, ~~Charlotte time~~the Agent will promptly notify each Lender with a Revolving Credit Commitment of the proposed Borrowing, on of such Lender's Pro Rata Share thereof and of the ~~requested Borrowing Date, each applicable~~ other matters specified in the Interest Rate Election Notice. Each such Lender will make the amount of its Pro Rata Share of such Borrowing available to the ~~Administrative~~ Agent at its office referred to in SECTION 14.3, for the ~~Payment Office an amount~~account of the Borrower, in Dollars and in immediately available funds, ~~equal~~ prior to 2:00 p.m., Charlotte, North Carolina local time, on the ~~amount of the Loan or Loans to be made by such Lender~~Borrowing Date. To the extent ~~such~~ the relevant Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the ~~Borrower in accordance with Section 2.3(a)~~ Borrower's account at the Agent's office and in like funds as received by the ~~Administrative~~ Agent, prior to 3:30 p.m., Charlotte, North Carolina local time, on the Borrowing Date. (dc) In order to make a Borrowing of a Swingline Loan, the Borrower will give the ~~Administrative~~ Agent (and the Swingline ~~Lender, if the Swingline~~ Lender ~~is not also the Administrative Agent)~~ written notice (or oral notice promptly confirmed in writing) not later than ~~11:00 a.m.~~12:00 noon, ~~Charlotte~~ Charlotte, North Carolina time, on the ~~date~~ Business Day of such Borrowing. Each such notice (each, a “"Notice of Swingline Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit B-2~~EXHIBIT B-2 (or, if oral notice is given, shall be ~~irrevocable~~ promptly followed with a writing in the form of EXHIBIT B-2) and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing ~~(which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment))~~ and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the ~~Administrative~~ Agent at its office referred to in SECTION 14.3 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make such amount available to the Borrower in accordance with ~~Section 2.3(a)~~ the terms hereof and in like funds as received by the ~~Administrative~~ Agent, prior to 3:30 p.m. Charlotte, North Carolina local time, on the Borrowing Date. (d) The Borrower hereby authorizes the Agent to disburse the proceeds of each Borrowing in accordance with the terms of any written instructions from any of the Authorized Officers; provided that the Agent shall not be obligated under any circumstances to forward amounts to any account not listed in an Account Designation Letter. The Borrower may at any time deliver to the Agent an Account Designation Letter listing any additional accounts or deleting any accounts listed in a previous Account Designation Letter. (e) ~~With respect~~ Unless the Agent has received, prior to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., ~~Charlotte~~ Charlotte, North Carolina time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, written notice from a Lender that such Lender will not make available to the ~~Refunded Swingline Loans (including~~ Agent such Lender's ratable portion, if any, of the ~~Swingline Lender’s ratable share thereof~~relevant Borrowing, the Agent may assume that such Lender has made such portion available to the Agent in immediately available funds on such Borrowing Date in accordance with the applicable provisions of this SECTION 2.2, and the Agent may, in ~~its capacity as~~ reliance upon such assumption, but shall not be obligated to, make a ~~Lender)~~ corresponding amount available to the Borrower on such Borrowing Date. If and to the extent that such Lender shall ~~be deemed~~ not have made such portion available to ~~be repaid with~~ the ~~proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender)~~Agent, and the Agent shall have made such ~~Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such~~ corresponding amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect available to the Borrower, ~~Revolving Loans are not made pursuant~~ such Lender, on the one hand, and the Borrower, on the other, severally agree to ~~Section 2.2(e) in an amount sufficient to repay any amounts owed~~ pay to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrower until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Agent, (i) in the case of such Lender, at the Federal Funds ~~Rate for the first three Business Days~~ Rate, and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) in the ~~occurrence or continuance of any Default or Event of Default, (iii) the failure~~ case of the ~~amount~~ Borrower, at the rate of interest applicable at such ~~Borrowing of Revolving~~ time to the Loans ~~to meet~~ comprising such Borrowing, as determined under the ~~minimum Borrowing amount specified in~~provisions of

Appears in 1 contract

Samples: Loan Agreement (Lason Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either (i) Base Rate Loans or (ii) LIBOR Loans (each, a “Type” of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (ii) no Borrowing of LIBOR Loans ~~shall~~ may be made ~~and maintained as LIBOR Market Index Rate Loans~~ at ~~all times~~any time prior to the third (3rd) Business Day after the Closing Date. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for~~ 2.11), unless such notice requirement is shortened by the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Administrative Agent, the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 12:00 p.m., Charlotte time, on the same Business Day ~~prior to~~ as each Borrowing to be comprised of Base Rate Loans; provided, however, that ~~requests~~ the request for the Borrowing of ~~Revolving Loans~~ the Loan to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, then the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.; (c) Not later than ~~1:00~~ 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Selective Insurance Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (ii) no LIBOR Loans ~~shall~~ may be ~~made and maintained as LIBOR Market Index Rate Loans~~ borrowed at ~~all times~~any time prior to the third Business Day after June 6, 2006. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)Borrowing, the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ on the Business Day ~~prior to~~ of each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ Loans to be made on ~~the Closing Date~~ June 6, 2006 may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the Borrower to which the Loans are to be made, (2) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (23) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (34) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess ~~thereof~~thereof (or, in each case, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure); (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Phoenix Companies Inc/De)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower ---------- and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (ii) notwithstanding any other provision of this Agreement, all Loans made prior to the third (3rd) Business Day after the Closing Date shall be made ~~and maintained~~ initially as ~~LIBOR Market Index~~ Base Rate ~~Loans at all times~~Loans. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.9), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that ~~requests~~ a request for ~~the~~ a Borrowing of ~~Revolving~~ Base Rate Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than the time specified therefor as ~~specified~~ set forth hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1a) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2b) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3c) the requested Borrowing Date, which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the ~~aggregate Commitments less the~~ Aggregate ~~Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount Upon its receipt of ~~the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~a Notice of Borrowing, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline promptly notify each Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaidBorrowing. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender ~~(other than the Swingline Lender)~~ will make available to the Administrative Agent at its office referred to in Section 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the ~~Revolving~~ Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the ~~Swingline Lender~~ Borrower in accordance with subsection (d) below and in like funds as received by the Administrative Agent~~, which shall apply such amounts~~ . (d) The Borrower hereby authorizes the Administrative Agent to disburse the proceeds of each Borrowing in ~~repayment~~ accordance with the terms of any written instructions from any of the ~~Refunded Swingline Loans~~Authorized Officers, provided that the -------- Administrative Agent shall not be obligated under any circumstances to forward amounts to any account not listed in an Account Designation Letter. ~~Notwithstanding~~ The Borrower may at any ~~provision of this Agreement~~ time deliver to the ~~contrary~~Administrative Agent an Account Designation Letter listing any additional accounts or deleting any accounts listed in a previous Account Designation Letter. (e) Unless the Administrative Agent has received, prior to 1:00 p.m., Charlotte time, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior written notice from ~~the Swingline Lender, each~~ a Lender ~~(other than the Swingline Lender)~~ that such Lender will not make available to the Administrative Agent at such Lender's ratable portion, if any, of the ~~Payment Office an amount~~relevant Borrowing, ~~in Dollars and in immediately available funds, equal to its respective participation. To~~ the ~~extent the Lenders have~~ Administrative Agent may assume that such Lender has made such ~~amounts~~ portion available to the Administrative Agent ~~as provided hereinabove~~in immediately available funds on such Borrowing Date in accordance with subsection (c) above, and the Administrative Agent ~~will~~ may, in reliance upon such assumption, but shall not be obligated to, make ~~the aggregate of such amounts~~ a corresponding amount available to the ~~Swingline Lender in like funds as received by~~ Borrower on such Borrowing Date. If and to the ~~Administrative Agent. In the event any~~ extent that such Lender ~~fails to make~~ shall not have made such portion available to the Administrative Agent, and the Administrative Agent shall have made such corresponding amount available to the ~~amount of~~ Borrower, such Lender~~’s participation as provided in this Section 2.2(f)~~, on the ~~Swingline Lender shall be entitled~~ one hand, and the Borrower, on the other, severally agree to ~~recover such amount~~ pay to the Administrative Agent forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrower until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Administrative Agent, (i) in the case of such Lender, at the Federal Funds ~~Rate~~ Rate, and (ii) in the case of the Borrower, at the rate of interest applicable at such time to Loans comprising such Borrowing, as determined under the provisions of Section 2.6. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount shall constitute such Lender's Loan as part of such Borrowing for purposes of this Agreement. The failure of any Lender to make any Loan required 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 as part of such Borrowing, but no Lender shall be responsible for the ~~first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt~~ failure of any ~~payment~~ other Lender to make the Loan to be made by such other Lender as part of any Borrowing. (f) Each Lender may, at its option, make and maintain any Loan at, to or ~~on behalf~~ for the account of any of its Lending Offices, provided that any exercise of -------- such option shall not affect the obligation of the Borrower ~~in respect of a Swingline Loan,~~ to repay such Loan to or for the ~~Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share~~ account of such ~~payment. (g) Notwithstanding any provision~~ Lender in accordance with the terms of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inAgreement.

Appears in 1 contract

Samples: Credit Agreement (Vesta Insurance Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the Borrower will give the ~~Administrative Agent~~ Lender written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit ~~B-1~~ A-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. ~~Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing.~~ Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of LIBOR Loans shall be in a principal amount not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitment); (ii) if the Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) ~~Not later than 1:00 p.m.~~As promptly as practicable, ~~Charlotte time~~upon satisfaction of the applicable conditions set forth in Section 3.2 (and, if such Borrowing is on the ~~requested Borrowing~~ Closing Date, ~~each applicable~~ Section 3.1), the Lender ~~will~~ shall make available to the ~~Administrative Agent at~~ Borrower the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate proceeds of such ~~amounts available to the Borrower~~ Borrowing in accordance with ~~Section 2.3(a) and in like funds as received by~~ the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount terms of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative AgentAccount Designation Letter. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (KMG America CORP)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the ~~Borrower~~ Borrowers and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), ; provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), an Authorized Officer of each of the ~~Borrower~~ Borrowers will give the ~~Administrative~~ Agent written notice not later than 11:00 a.m., ~~Charlotte time,~~ three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one Business Day prior to~~ on the Borrowing Date (as hereinafter defined) for each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the ~~Borrower~~ Borrowers shall have failed to designate the Type of Loans comprising a Borrowing, the ~~Borrower~~ Borrowers shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the ~~Borrower~~ Borrowers shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the ~~Borrower~~ Borrowers shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., ~~Charlotte time,~~ on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in Section 10.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the ~~Administrative~~ Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Tel Save Holdings Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order to make a Borrowing of Base Rate Loans or LIBOR Loans (other than ~~(w)~~ Borrowings involving continuations or conversions of ~~Swingline Loans~~outstanding Base Rate or LIBOR Loans , which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5SECTION 2.10), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to ~~each~~ a Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day ~~prior to each~~ of a Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that ~~requests~~ a request for ~~the~~ a Borrowing of ~~Revolving~~ Base Rate Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than the time specified therefor as ~~specified~~ set forth hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1a) the aggregate principal ~~amount, Class~~ amount and initial Type of the ~~Loans to be made pursuant to such Borrowing~~Loan, (2b) in the case of a ~~Borrowing of~~ LIBOR ~~Loans~~Loan, the initial Interest Period to be applicable thereto, and (3c) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein~~: (i)~~ , the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) ~~Not later than 1:00 p.m., Charlotte time, on~~ Upon fulfillment of the ~~requested Borrowing Date~~applicable conditions in ARTICLE III, each ~~applicable~~ Lender will make available to the Administrative Agent at its office referred to in SECTION 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the ~~Swingline Lender~~ Borrower in accordance with SECTION 2.3(A) and in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Everest Reinsurance Holdings Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan)~~, provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. ~~The Swingline Loans shall be made and maintained as~~ [Discuss LIBOR ~~Market Index Rate Loans~~ Borrowings at ~~all times.~~Closing] (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments)~~, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at its office referred to in Section 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Everest Re Group LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), ; provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $~~1,000,000~~ 5,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments)~~, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at its office referred to in SECTION 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the ~~Swingline Lender~~ Borrower in accordance with SECTION 2.3(A) and in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Alleghany Corp /De)

Borrowings. (a) The Term Loans and Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order to make a Borrowing (other than (wx) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (xy) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), and (yz) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the Business Day ~~prior to each~~ of any Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of the Term Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of the Borrowing of Term Loans shall be in the amount of the aggregate Term Loan Commitments; (ii) except for a Borrowing with respect to a Refunded Swingline Loan in accordance with Section 2.2(e), the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate ~~Commitments less the Aggregate~~ Unutilized Revolving Credit ~~Exposure~~Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (iiiii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (~~iii~~iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date (which shall be the Closing Date, in the case of the Term Loans), each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $~~500,000~~ 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the Borrower), not later than ~~11:00~~ 10:00 a.m., Charlotte ~~time, one~~ time on the Business Day ~~prior to~~ of the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section ~~2.15(b~~2.14(b). (f) If, as a result of any ~~bankruptcy, insolvency or similar proceeding~~ Bankruptcy Event with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or ~~warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender)~~warranty, and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time, or if the Revolving Credit Commitments have been terminated, based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments, in each case immediately prior to the termination thereof) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inin Section 2.2(b), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.

Appears in 1 contract

Samples: Credit Agreement (Intercontinentalexchange Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same ~~Type. The Swingline~~ Type and (ii) any Loans made on the Closing Date shall be made ~~and maintained~~ initially as ~~LIBOR Market Index~~ Base Rate ~~Loans at all times~~Loans. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 2.11), the Borrower will give the ~~Administrative~~ Agent written notice not later than ~~11:00 a.m.~~12:00 noon, Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 250,000, or, if greater, an integral multiple of $~~100,000~~ 50,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 500,000 or, if greater, an integral multiple of $~~1,000,000~~ 250,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in SECTION 10.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with ~~Section 2.3(a~~SECTION 2.3(A) and in like funds as received by the ~~Administrative~~ Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Orthalliance Inc)

Borrowings. (a) ~~The Revolving Loans (each~~Borrower may from time to time from the date of this Note up to and including January 31, ~~together with the Swingline Loans~~2004, ~~a “Class” of Loan) shall~~borrow and partially or wholly repay its outstanding borrowings, ~~at the option~~ subject to all of the ~~Borrower and subject to the~~ limitations, terms and conditions of this ~~Agreement~~Note and of any document executed in connection with or governing this Note; provided however, that amounts repaid may not be ~~either Base Rate Loans or LIBOR Loans (each~~reborrowed; and provided further, ~~a “Type” of Loan), provided~~ that ~~all Revolving Loans comprising~~ the ~~same Borrowing shall, unless otherwise specifically provided herein, be of~~ total borrowings under this Note shall not exceed the ~~same Type~~principal amount stated above. The ~~Swingline Loans~~ unpaid principal balance of this obligation at any time shall be the total amounts advanced hereunder by the holder hereof less the amount of principal payments made ~~and maintained as LIBOR Market Index Rate Loans at all times~~hereon by or for any Borrower, which balance may be endorsed hereon from time to time by the holder. (b) ~~In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which~~ All Base Rate borrowings shall be ~~made pursuant to Section 2.2(d~~in amounts of at least Ten Thousand and No/100 Dollars ($10,000.00), ~~(x) Borrowings for the purpose of repaying Refunded Swingline Loans, which~~ and all LIBOR borrowings shall be ~~made pursuant to Section 2.2(e),~~ in amounts of at least One Hundred Thousand and No/100 Dollars (y$100,000.00) ~~Borrowings involving continuations~~ or ~~conversions~~ any multiple thereof. (c) The amount and date of ~~outstanding Loans, which~~ each Base Rate borrowing shall be ~~made pursuant~~ designated by an authorized representative of the Borrower requesting such borrowing in form and substance satisfactory to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations~~Bank, ~~which~~ at Bank's sole discretion, and such borrowing request shall be ~~made pursuant to Section 3.5),~~ received by the ~~Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three Business Days prior to each Borrowing to be comprised of LIBOR Loans and~~ Bank at least one (1) Business Day prior to ~~each Borrowing to be comprised~~ the date of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Dateloan, which date shall be a Business Day. ~~Upon its receipt of a Notice of Borrowing,~~ Each Base Rate loan shall be made at the ~~Administrative Agent will promptly notify each applicable Lender~~ office of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), Bank and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be ~~deemed~~ funded prior to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte 2:00 p.m. Houston time, on the day so requested ~~Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars~~ and in immediately available ~~funds, equal to~~ fund in the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agentso requested. (d) ~~In order to make a Borrowing~~ The amount and date of ~~a Swingline Loan,~~ each LIBOR borrowing shall be designated by an authorized representative of the Borrower ~~will give~~ requesting such borrowing in form and substance satisfactory to Bank, at Bank's sole discretion, and such borrowing request shall be received by the ~~Administrative Agent~~ Bank at least three (~~and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent~~3) ~~written notice not later than 11:00 a.m., Charlotte time, on~~ Business Days prior to the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Dateloan, which date shall be a Business Day. ~~Not later than 1:00 p.m., Charlotte~~ Each LIBOR loan shall be made at the office of the Bank and shall be funded prior to 2:00 p.m. Houston time, on the day so requested ~~Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars~~ and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower fund in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so ~~recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b)~~requested. (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Allis Chalmers Corp)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of ~~the~~ each Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall~~ , and (ii) no LIBOR Loan may be ~~made and maintained as LIBOR Market Index Rate Loans~~ borrowed at ~~all times~~any time prior to the third (3rd) Business Day after the Restatement Effective Date. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), ~~the~~ each Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day ~~prior to each~~ of such Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the ~~Closing~~ Restatement Effective Date may, at the discretion of the Administrative Agent, be given with less advance notice than as the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Tranche 1 Commitments)~~, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (ii) if the applicable Borrower shall have failed to designate the Type of Loans comprising a Borrowing, ~~the~~ such Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Tranche 1 Lender will make available to the Administrative Agent at its office referred to in Section 11.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Tranche 1 Lender. To the extent ~~such~~ the Tranche 1 Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Everest Re Group LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), ; provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day ~~prior to~~ of each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1x) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3z) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, and each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Tranche 1 Commitments); (ii) if the applicable Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the applicable Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Tranche 1 Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Tranche 1 Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.2 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the applicable Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Platinum Underwriters Holdings LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (ii) any Loans made on or within three (3) Business Days after the Closing Date shall be made ~~and maintained~~ initially as ~~LIBOR Market Index~~ Base Rate ~~Loans at all times~~Loans. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the Administrative Agent written notice not later than ~~11:00 a.m.~~1:00 p.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than ~~1:00~~ 2:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at its office referred to in Section 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Orion Capital Corp)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the ~~Administrative~~ Agent written notice of the proposed Borrowing not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in Section 11.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the ~~Administrative~~ Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Pxre Group LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either (i) Base Rate Loans or (ii) LIBOR Loans (each, a “Type” of Loan), ; provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for~~ 2.11), unless such notice requirement is shortened by the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Administrative Agent, the Borrower will give the Administrative Agent written notice not later than ~~11:00 a.m., Charlotte time,~~ 12:00 p.m. three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 12:00 p.m. on the same Business Day ~~prior to~~ as each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, then the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one (1) month.; (c) Not later than ~~1:00 p.m., Charlotte time,~~ 2:00 p.m. on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Selective Insurance Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan)~~, provided that all Revolving~~ . All Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.12), the Borrower will give the Administrative Agent written notice (i) not later than ~~11:00 a.m.~~12:00 noon, ~~Charlotte~~ Charlotte, North Carolina time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ (ii) not later than 12:00 noon, Charlotte, North Carolina time, on the Business Day ~~prior to each~~ of any Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess ~~thereof~~thereof (or, if less, in the amount of the aggregate Unutilized Commitments); (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., ~~Charlotte time~~Local Time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at ~~the~~ its Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Intercontinentalexchange Inc)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of~~ Whenever the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order desires to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding ~~Loans, which shall be made~~ Loans pursuant to Section ~~2.11 or (z~~2.9) ~~Borrowings for~~ under the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Revolving Credit/Term Facility, the Borrower will give the ~~Administrative~~ Agent written notice ~~not later than~~ (by telecopier or otherwise), prior to 11:00 a.m., Charlotte time, at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and at least one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall be appropriately completed to specify (1i) the aggregate principal ~~amount, Class~~ amount and ~~initial~~ Type of the Loans to be made pursuant to such ~~Borrowing~~Borrowing (and, ~~(2)~~ in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, ) and (3ii) the requested date of the Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing hereunder (y) in the case of Borrowings comprised of Base Rate ~~Loans~~ Loans, shall not be less than $~~1,000,000 or~~500,000 and, if greater, shall be in an integral multiple of $100,000 in excess ~~thereof~~ thereof, and (~~or, if less,~~ z) in the ~~amount~~ case of ~~the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing~~ Borrowings comprised of LIBOR ~~Loans~~ Loans, shall not be less than $~~2,000,000 or~~3,000,000 and, if greater, shall be in an integral multiple of $1,000,000 in excess thereof; (ii) the aggregate principal amount of all Borrowings under the Revolving Credit/Term Facility, the proceeds of which are utilized to finance any single Permitted Acquisition, in part or in whole, shall not be more than $20,000,000, without the prior written consent of the Required Lenders, provided that the principal amount of all Borrowings the proceeds of which are used to finance the Satellite Acquisition may exceed $20,000,000 but shall not be more than $125,000,000 (it being understood that the consummation of the Satellite Acquisition shall be subject to compliance by the Borrower with the provisions of Section 5.15 and the other applicable provisions of this Agreement); (iii) no Revolving Credit/Term Loans may be incurred to the extent that, immediately after giving effect thereto, the aggregate original principal amount of all Revolving Credit/Term Loans the proceeds of which were utilized to finance Permitted Acquisitions during any single fiscal year, in part or in whole, shall exceed $75,000,000, without the prior written consent of the Required Lenders; provided, however, that the purchase price of the Satellite Acquisition (not to exceed the amount set forth in the definition thereof) shall be excluded from such $75,000,000 Acquisition threshold for the 1997 fiscal year; (iv) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans~~; and~~; (~~iii~~v) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one (1) month; and (vi) LIBOR Loans under the Revolving Credit/Term Facility may not be outstanding under more than five (5) separate Interest Periods at any one time. (cb) ~~Not later than 1:00 p.m.~~Upon the receipt of a Notice of Borrowing, ~~Charlotte time~~the Agent will promptly notify each Lender with a Revolving Credit/Term Commitment of the proposed Borrowing, on of such Lender's Pro Rata Share thereof and of the ~~requested Borrowing Date, each applicable~~ other matters specified in the Notice of Borrowing. Each such Lender will make the amount of its Pro Rata Share of such Borrowing available to the ~~Administrative~~ Agent at its office referred to in Section 10.4, for the ~~Payment Office an amount~~account of the Borrower, in Dollars and in immediately available funds, ~~equal~~ prior to 12:00 noon, Charlotte time, on the ~~amount of the Loan or Loans to be made by such Lender~~Borrowing Date. To the extent ~~such~~ the relevant Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the ~~Borrower in accordance with Section 2.3(a)~~ Borrower's account at the Agent's office and in like funds as received by the ~~Administrative~~ Agent~~. (d) In order~~ , prior to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 3:30 p.m., Charlotte time, on the ~~requested~~ Borrowing Date. (c) Unless the Agent has received, prior to 12:00 noon, Charlotte time, on any Borrowing Date, ~~the Swingline~~ written notice from a Lender that such Lender will not make available to the ~~Administrative~~ Agent ~~at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount~~ its Pro Rata Share of the ~~requested Swingline Loan. To~~ relevant Borrowing, the ~~extent the Swingline~~ Agent may assume that such Lender has made its Pro Rata Share of such ~~amount~~ Borrowing available to the ~~Administrative~~ Agent ~~as provided hereinabove~~on such Borrowing Date in accordance with subsection (b) above, and the ~~Administrative~~ Agent ~~will~~ may, in reliance upon such assumption, make ~~such~~ a corresponding amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing ~~Date in an aggregate amount equal~~ Date. If and to the ~~amount of~~ extent that such ~~Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date~~ Lender shall not have made such ~~notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make~~ Pro Rata Share available to the ~~Administrative~~ Agent, and the Agent ~~at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders~~ shall have made such ~~amounts~~ corresponding amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, ~~Revolving Loans are not made pursuant~~ such Lender, on the one hand, and the Borrower, on the other, severally agree to ~~Section 2.2(e) in an amount sufficient to repay any amounts owed~~ pay to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrower until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Agent, (i) if recovered from such Lender, at the Federal Funds ~~Rate for~~ Rate, and (ii) if recovered from the ~~first three Business Days and thereafter~~ Borrower, at the ~~Adjusted Base Rate~~ rate of interest applicable to ~~Revolving Loans~~Loans comprising such Borrowing, as determined under Section 2.6. ~~Promptly following its receipt of any payment by or on behalf of~~ If such Lender shall repay to the ~~Borrower in respect of a Swingline Loan~~Agent such corresponding amount, ~~the Swingline Lender will pay to each Lender that has acquired a participation therein~~ such amount so repaid shall constitute such Lender~~’s ratable share~~ 's Loan as part of such ~~payment~~Borrowing for purposes of this Agreement. (gd) ~~Notwithstanding~~ The failure of any ~~provision~~ Lender to make any Loan required to be made by it as part of ~~this Agreement~~ any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the ~~contrary, the obligation of each~~ respective Borrowing Date or relieve any Lender (~~other than~~ including the ~~Swingline Lender)~~ Lender that failed to make ~~Revolving Loans for the purpose~~ such amount available) of ~~repaying~~ its obligation, if any, hereunder to make its Pro Rata Share of any ~~Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f)~~ subsequent Borrowing available, but no Lender shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person responsible for ~~any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii)~~ the failure of any other Lender to make the ~~amount~~ Loan to be made by such other Lender as part of ~~such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in~~any Borrowing.

Appears in 1 contract

Samples: Loan Agreement (Renal Treatment Centers Inc /De/)

Borrowings. (a) The Term Loans and Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order to make a Borrowing (other than (wx) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (xy) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), and (yz) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00am, Charlotte time, on the Business Day ~~prior to each~~ of any Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of the Term Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of the Borrowing of Term Loans shall be in the amount of the aggregate Term Loan Commitments; (ii) except for a Borrowing with respect to a Refunded Swingline Loan in accordance with Section 2.2(e), the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate ~~Commitments less the Aggregate~~ Unutilized Revolving Credit ~~Exposure~~Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (iiiii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (~~iii~~iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date (which shall be the Closing Date, in the case of the Term Loans), each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $~~500,000~~ 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the Borrower), not later than ~~11:00~~ 10:00 a.m., Charlotte ~~time, one~~ time on the Business Day ~~prior to~~ of the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section ~~2.15(b~~2.14(b). (f) If, as a result of any ~~bankruptcy, insolvency or similar proceeding~~ Bankruptcy Event with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or ~~warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender)~~warranty, and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inin Section 2.2(b), or (iv) the failure of any conditions set forth in Section 3.2 or elsewhere herein to be satisfied.

Appears in 1 contract

Samples: Credit Agreement (Intercontinentalexchange Inc)

Appears in 1 contract

Samples: Credit Agreement and Pledge and Security Agreement (Swisher Hygiene Inc.)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same ~~Type. The Swingline~~ Type and (ii) any Loans made on the Closing Date shall be made ~~and maintained~~ initially as ~~LIBOR Market Index~~ Base Rate ~~Loans at all times~~Loans. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 2.11), the Borrower will give the ~~Administrative~~ Agent written notice not later than ~~11:00 a.m.~~12:00 noon, Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 1,000,000, or, if greater, an integral multiple of $100,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in SECTION 10.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with ~~Section~~ SECTION 2.3(a) and in like funds as received by the ~~Administrative~~ Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Orthalliance Inc)

Borrowings. (a) The Term Loans and the Revolving Loans (~~each, together with the Swingline Loans,~~ each a “"Class” " of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , (ii) the Loans (whether Revolving or Term Loans) made on the Closing Date or the Third Amendment Closing Date shall be made ~~and maintained~~ initially as ~~LIBOR Market Index~~ Base Rate Loans ~~at all times~~and (iii) LIBOR Loans may be made, or Base Rate Loans may be converted into LIBOR Loans, on the date which is three (3) Business Days following the Closing Date or Third Amendment Closing Date, as applicable (so long as proper notice is given pursuant to SECTION 2.2(b) or SECTION 2.11(b)). (b) In order to make a Borrowing of Term Loans or Revolving Loans (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 2.11), the Borrower will give the Administrative Agent written notice not later than ~~11:00 a.m.~~12:00 noon, Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one Business Day prior to~~ on the date of each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (~~each, a “~~each "Notice of Borrowing”") shall be irrevocable, shall be given substantially in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein:; 4 5 (i) the aggregate principal amount of ~~each Borrowing comprised~~ all Borrowings of ~~Base Rate~~ Term Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an ~~integral multiple of $100,000~~ amount not in excess ~~thereof (or, if less, in the amount~~ of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Term Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inCommitments;

Appears in 1 contract

Samples: Credit Agreement (Ackerley Group Inc)

Borrowings. (a) ~~The Revolving Loans (each, together with~~ Whenever the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order Borrowers desire to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding ~~Loans, which shall be made~~ Loans pursuant to ~~Section 2.11 or (z~~SECTION 2.9) ~~Borrowings for~~ under the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Revolving Credit Facility, the ~~Borrower~~ Borrowers will give the ~~Administrative~~ Agent written notice ~~not later than~~ (by telecopier or otherwise), prior to 11:00 a.m., ~~Charlotte~~ Charlotte, North Carolina time, at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and by 12:00 p.m., Charlotte, North Carolina time, at least one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans~~; provided~~, ~~however, that requests~~ except in the cause of Borrowings through any lock box or similar arrangement for ~~the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less~~ which no advance notice ~~than as specified hereinabove~~is required. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall be appropriately completed to specify (1i) the aggregate principal ~~amount, Class~~ amount and ~~initial~~ Type of the Loans to be made pursuant to such ~~Borrowing~~Borrowing (and, ~~(2)~~ in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto), (ii) the identity of the Borrower for whose benefit the Borrowing will be made, and (3iii) the requested date of the Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing hereunder, in the case of Borrowings comprised of ~~Base Rate Loans~~ LIBOR Loans, shall not be less than $1,000,000 orand, if greater, ~~an integral multiple of $100,000~~ shall be in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the ~~Borrower~~ Borrowers shall have failed to designate the Type of Loans comprising a Borrowing, the ~~Borrower~~ Borrowers shall be deemed to have requested a Borrowing comprised of Base Rate Loans~~; and~~; (iii) if the ~~Borrower~~ Borrowers shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the ~~Borrower~~ Borrowers shall be deemed to have selected an Interest Period with a duration of one (1) month.; and (cb) ~~Not later than 1:00 p.m.~~Upon the receipt of a Notice of Borrowing, ~~Charlotte time~~the Agent will promptly notify each Lender with a Revolving Credit Commitment of the proposed Borrowing, on of such Lender's Pro Rata Share thereof and of the ~~requested Borrowing Date, each applicable~~ other matters specified in the Notice of Borrowing. Each such Lender will make the amount of its Pro Rata Share of such Borrowing available to the ~~Administrative~~ Agent at its office referred to in SECTION 10.4, for the ~~Payment Office an amount~~account of the Borrowers, in Dollars and in immediately available funds, ~~equal~~ prior to 2:00 p.m., Charlotte, North Carolina time, on the ~~amount of the Loan or Loans to be made by such Lender~~Borrowing Date. To the extent ~~such~~ the relevant Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the ~~Borrower in accordance with Section 2.3(a)~~ Borrowers' account at the Agent's office and in like funds as received by the ~~Administrative~~ Agent~~. (d) In order~~ , prior to ~~make a Borrowing of a Swingline Loan~~3:00 p.m., ~~the Borrower will give the Administrative Agent (and the Swingline Lender~~Charlotte, ~~if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte~~ North Carolina time, on the ~~date of such Borrowing. Each such notice~~ Borrowing Date. (~~each~~c) Unless the Agent has received, ~~a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2~~prior to 12:30 pm, ~~shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and~~Charlotte, ~~if greater~~North Carolina time, ~~shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested~~ on any Borrowing Date, ~~which shall be~~ written notice from a ~~Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline~~ Lender that such Lender will not make available to the ~~Administrative~~ Agent ~~at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount~~ its Pro Rata Share of the ~~requested Swingline Loan. To~~ relevant Borrowing, the ~~extent the Swingline~~ Agent may assume that such Lender has made its Pro Rata Share of such ~~amount~~ Borrowing available to the ~~Administrative~~ Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in ~~an aggregate~~ accordance with subsection (b) above, and the Agent may, in reliance upon such assumption, make a corresponding amount ~~equal~~ available to the Borrowers on such Borrowing Date. If and to the extent that such Lender shall not have made such Pro Rata Share available to the Agent, and the Agent shall have made such corresponding amount of available to the Borrowers, such ~~Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time~~Lender, on the ~~requested Borrowing Date~~one hand, ~~each Lender (other than~~ and the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contraryBorrowers, on the ~~relevant Borrowing Date~~other, ~~the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed~~ severally agree to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) pay to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrowers until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Agent, (i) if recovered from such Lender, at the Federal Funds ~~Rate for~~ Rate. and (ii) if recovered from the ~~first three Business Days and thereafter~~ Borrowers, at the ~~Adjusted Base Rate~~ rate of interest applicable to ~~Revolving Loans~~Loans comprising such Borrowing, as determined under SECTION 2.6. ~~Promptly following its receipt of any payment by or on behalf of~~ If such Lender shall repay to the ~~Borrower in respect of a Swingline Loan~~Agent such corresponding amount, ~~the Swingline Lender will pay to each Lender that has acquired a participation therein~~ such amount so repaid shall constitute such Lender~~’s ratable share~~ 's Loan as part of such ~~payment~~Borrowing for purposes of this Agreement. (gd) The failure of any Lender to make any Loan required to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the respective Borrowing Date, but no Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender as part of any Borrowing. (e) Notwithstanding any other provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation contained herein or in any ~~unpaid Swingline~~ of the other Loan Documents, any Lender that refuses to fund or otherwise defaults in the funding of its Pro Rata Share of any Borrowings requested and permitted to be made by the Borrowers hereunder shall not, for so long as such refusal has not been withdrawn or such default has not been cured, have any rights of consent or approval or any voting rights whatsoever with respect to any matter hereunder or under any of the other Loan Documents that requires or permits the consent, approval or action of the Lenders, or any of them, and the Commitments and the Loans ~~pursuant to Section 2.2(f) shall be absolute and unconditional and~~ of any such Lender shall not be ~~affected by~~ taken into account for purposes of determining, at any ~~circumstance~~ time during the continuation of any such refusal or ~~event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender~~default, the ~~Administrative Agent,~~ Required Lenders or the ~~Borrower~~ number or percentage of Lenders that shall be required for the Lenders or any ~~other Person for~~ of them to take or approve, or direct the Agent to take, any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified inaction hereunder.

Appears in 1 contract

Samples: Credit Agreement (Shop Vac Corp)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $~~1,000,000~~ 500,000 or, if greater, an integral multiple of $100,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of LIBOR Loans shall be in a principal amount not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Tranche 1 Commitments); (ii) if the Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Tranche 1 Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Tranche 1 Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.2 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Odyssey Re Holdings Corp)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the Business Day ~~prior to each~~ of any Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, in the case of a Borrowing of Loans, if less, in the amount of the aggregate Unutilized Commitments) or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure)~~Unutilized Commitments, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if ~~the~~ a Borrower shall have failed to designate the Type of Loans comprising a Borrowing, ~~the~~ such Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if ~~the~~ a Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Intercontinentalexchange Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of ~~the Borrower~~ IPC Holdings and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR ~~Loans (each, a “Type” of Loan)~~Loans, provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 3.10), ~~the Borrower~~ IPC Holdings will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, and each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Tranche 1 Commitments); (ii) if ~~the Borrower~~ IPC Holdings shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if ~~the Borrower~~ IPC Holdings shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the Borrower~~ IPC Holdings shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Tranche 1 Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Tranche 1 Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans~~ applicable conditions set forth in SECTION 5.2 (and, if such Borrowing is to ~~be made by such Lender. To~~ occur on the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~Effective Date, SECTION 5.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to ~~the Borrower in accordance with Section 2.3(a) and~~ IPC Holdings in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(bSECTION 3.3(A). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Ipc Holdings LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans~~ ; provided further that the foregoing proviso shall be not prevent multiple Borrowings, respectively having different Types, from being made ~~and maintained as LIBOR Market Index Rate Loans at all times~~on the same Business Day, subject to the terms of clause (iii) of Section 2.10. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the ~~Administrative~~ Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the ~~Administrative~~ Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the ~~Administrative~~ Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at its office referred to in Section 11.5 (or at such other location as the ~~Payment Office~~ Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the ~~Administrative~~ Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Penn America Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), ; provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)Borrowing, the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day ~~prior to~~ of each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1x) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2y) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3z) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof, and each Borrowing of LIBOR Loans shall be in a principal amount not less than $5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the applicable Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the applicable Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.2 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the applicable Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Platinum Underwriters Holdings LTD)

Borrowings. (a) The Revolving Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR ~~Loans (each, a “Type” of Loan)~~Loans, provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than ~~(w)~~ Borrowings involving continuations or Conversions of ~~Swingline Loans,~~ outstanding Revolving Loans which shall be made pursuant to Section ~~2.2(d~~5.4), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5), the Borrower an Authorized Officer will give the Administrative Agent ~~written~~ telephonic notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ on the Business Day ~~prior to~~ of each Borrowing to be comprised of Base Rate Loans, which notice shall be irrevocable. The Authorized Officer shall provide the Administrative Agent written confirmation of each such telephonic notice but failure to provide such confirmation shall not affect the validity of such telephonic notice; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the ~~Closing~~ Effective Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such written notice (each, a “Notice of Borrowing”) shall be ~~irrevocable, shall be~~ given in the form of Exhibit ~~B-1~~ B-1(a) and each Notice of Borrowing shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Revolving Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans other than a Borrowing (x) solely to repay a then outstanding Swing Line Loan in accordance with Section 3.8(d), which may be in the amount of such Swing Line Loan or (y) solely to satisfy any Reimbursement Obligation under Section 4.4, which may be in the amount of such Reimbursement Obligation, shall not be less than $~~1,000,000~~ 500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 100,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Revolving Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Revolving Lender will make available to the Administrative Agent at its office referred to in Section 14.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available ~~funds,~~ funds equal to the amount of the Revolving Loan ~~or Loans~~ to be made by such Revolving Lender. To the extent ~~such~~ the Revolving Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section ~~2.3(a~~3.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Radiation Therapy Services Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either (i) Base Rate Loans or (ii) LIBOR Loans (each, a “Type” of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (ii) no Borrowing of LIBOR Loans ~~shall~~ may be made ~~and maintained as LIBOR Market Index Rate Loans~~ at ~~all times~~any time prior to the third (3rd) Business Day after the Closing Date. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for~~ 2.11), unless such notice requirement is shortened by the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Administrative Agent, the Borrower will give the Administrative Agent written notice not later than ~~11:00 a.m.~~12:00 p.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 12:00 p.m., Charlotte time, on the same Business Day ~~prior to~~ as each Borrowing to be comprised of Base Rate Loans; provided, however, that ~~requests~~ the request for the Borrowing of ~~Revolving Loans~~ the Loan to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, then the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.; (c) Not later than ~~1:00~~ 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Selective Insurance Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.10), the applicable Borrower will give the Administrative Agent written notice not later than 11:00 a.m., ~~Charlotte~~ Charlotte, North Carolina time, three (3) Business Days prior to each Borrowing ~~to be comprised~~ of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte, North Carolina time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of Base Rate Loans shall be in a principal amount not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and ~~the aggregate principal amount of~~ each Borrowing ~~comprised~~ of LIBOR Loans shall be in a principal amount not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the applicable Borrower shall have failed to designate the Type of Loans ~~comprising~~ in a Notice of Borrowing, then the ~~Borrower~~ Loans shall be ~~deemed to have requested a Borrowing comprised of~~ made as Base Rate Loans; and (iii) if the applicable Borrower shall have failed to ~~select the duration of the~~ specify an Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period ~~with a duration~~ of one month. (c) Not later than 1:00 p.m., ~~Charlotte~~ Charlotte, North Carolina time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to ~~the amount~~ its Ratable Share of such requested Borrowing as its Loan or Loans. As promptly as practicable, upon satisfaction of the ~~Loan or Loans to be made by~~ applicable conditions set forth in Section 4.2 (and, if such ~~Lender. To~~ Borrowing is the ~~extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~initial Credit Extension, Section 4.1), the Administrative Agent ~~will~~ shall make ~~the aggregate of such amounts~~ all funds so received available to the applicable Borrower ~~in accordance with Section 2.3(a) and~~ in like funds as received by the Administrative ~~Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative~~ Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Allied World Assurance Co Holdings LTD)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), ; provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $~~1,000,000~~ 5,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments)~~, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at its office referred to in SECTION 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the ~~Swingline Lender~~ Borrower in accordance with SECTION 2.3(a) and in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Alleghany Corp /De)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either (i) Base Rate Loans or (ii) LIBOR Loans (each, a “"Type” " of Loan), provided that (x) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (y) no Borrowing of LIBOR Loans ~~shall~~ may be made ~~and maintained as LIBOR Market Index Rate Loans~~ at ~~all times~~any time prior to the third (3rd) Business Day after the Closing Date. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to ~~Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~SECTION 2.11), the Borrower will give the ~~Administrative Agent~~ Lender written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and not later than one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that ~~requests~~ the request for the Borrowing of ~~Revolving Loans~~ the Loan to be made on the Closing Date may, at the discretion of the ~~Administrative Agent~~Lender, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 3,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.; (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, ~~each applicable~~ the Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative AgentBorrower. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Radian Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either (i) Base Rate Loans or (ii) LIBOR Loans (each, a “Type” of Loan), ; provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline~~ , and (ii) no Borrowing of LIBOR Loans ~~shall~~ may be made ~~and maintained as LIBOR Market Index Rate Loans~~ at ~~all times~~any time prior to the third (3rd) Business Day after the Closing Date. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for~~ 2.11), unless such notice requirement is shortened by the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Administrative Agent, the Borrower will give the Administrative Agent written notice not later than ~~11:00 a.m.~~12:00 p.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 12:00 p.m., Charlotte time, on the same Business Day ~~prior to~~ as each Borrowing to be comprised of Base Rate Loans; provided, however, that ~~requests~~ the request for the Borrowing of ~~Revolving Loans~~ the Loan to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof (or, if less, in the amount of the aggregate Commitments less the Aggregate Credit Exposure)~~thereof, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess ~~thereof~~thereof (or, in each case if less than the minimum amount, in the amount of the aggregate Unutilized Commitments); (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, then the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month.; (c) Not later than ~~1:00~~ 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Selective Insurance Group Inc)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “"Type” " of Loan), provided that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., ~~Charlotte time~~Local Time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $~~100,000~~ 500,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 5,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., ~~Charlotte time~~Local Time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the Administrative Agent at its office referred to in Section 10.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. To the extent ~~such~~ the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Markel Corp)

Borrowings. (a) ~~The~~ Each Revolving ~~Loans (each, together with the Swingline Loans, a “Class” of Loan)~~ Loan shall, at the option of the applicable Borrower and subject to the terms and conditions of this Agreement, be either a Base Rate ~~Loans~~ Loan or a LIBOR ~~Loans~~ Loan (each, a “Type” of Loan)) and shall be denominated in a single Currency; provided, ~~provided~~ however, that all Revolving Loans ~~comprising~~ denominated in a Foreign Currency shall be LIBOR Loans at all times; provided further that (i) all Loans constituting the same Borrowing shall, unless otherwise specifically provided herein, be of the same ~~Type~~Type and denominated in the same Currency, and (iii) no LIBOR Loans may be borrowed at any time prior to the third Business Day after the Closing Date. The Swingline Loans shall be made and maintained as ~~LIBOR Market Index~~ Base Rate Loans and shall be denominated in Dollars at all times. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings ~~involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings~~ for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5, and (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11), ~~the Borrower will~~ Xxxxxxxx shall give the Administrative Agent written notice on behalf of the applicable Borrower (and each Borrower hereby irrevocably and unconditionally authorizes Xxxxxxxx to give any such notice from time to time in any form or substance as permitted under this Section 2.2) not later than ~~11:00 a.m.~~12:00 p.m., Charlotte time, (i) on the day of each Borrowing to comprise Base Rate Loans, (ii) three Business Days prior to each Borrowing to ~~be comprised of~~ comprise LIBOR Loans ~~and one~~ denominated in Dollars or (iii) four Business ~~Day~~ Days prior to each Borrowing to ~~be comprised of Base Rate Loans~~comprise LIBOR Loans denominated in a Foreign Currency; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit ~~B-1~~ B-1, shall be signed by an Authorized Officer of Xxxxxxxx and shall specify (1) the Borrower to which the Loans constituting such Borrowing will be made, (2) the aggregate principal amount, ~~Class~~ Currency and initial Type of the Loans to be made pursuant to such Borrowing, (23) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (34) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent ~~will~~ shall promptly notify each applicable Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) if Xxxxxxxx shall have failed to designate the Borrower to which the Loans constituting a Borrowing will be made, then Xxxxxxxx shall be deemed to have requested a Borrowing of Loans made to Xxxxxxxx; (ii) except with respect to a Borrowing for the purpose of repaying Refunded Swingline Loans or paying Reimbursement Obligations, the Dollar Amount of the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $1,000,000 orand, if greater, an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof (or~~thereof; provided, ~~if less~~however, that a Borrowing comprising Base Rate Loans may be in ~~the~~ an amount of equal to the aggregate Commitments less the Aggregate Credit Exposure~~), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (iiiii) if Xxxxxxxx shall have failed to designate the ~~Borrower~~ Currency of Loans constituting a Borrowing, then Xxxxxxxx shall be deemed to have requested a Borrowing comprising Loans denominated in Dollars; (iv) if Xxxxxxxx shall have failed to designate the Type of Loans ~~comprising~~ constituting a ~~Borrowing~~Borrowing of Loans denominated in Dollars, ~~the Borrower~~ then Xxxxxxxx shall be deemed to have requested a Borrowing ~~comprised~~ comprising of Base Rate Loans; and (~~iii~~v) if ~~the Borrower~~ Xxxxxxxx shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the Borrower~~ Xxxxxxxx shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than (i) (A) with respect to a Borrowing denominated in Japanese Yen, 9:00 a.m., Tokyo time, (B) with respect to a Borrowing denominated in Australian Dollars, 9:00 a.m., Sydney time, or (C) with respect to a Borrowing denominated in any other Forward Foreign Currency, 9:00 a.m., local time for the central bank of the issuing jurisdiction of such Forward Foreign Currency, (ii) with respect to a Borrowing denominated in any other Foreign Currency, 1:00 p.m., London time, or (iii) with respect to a Borrowing denominated in Dollars, 2:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender ~~will~~ shall make available to the Administrative Agent at in accordance with the applicable Payment ~~Office~~ Instructions an amount, in ~~Dollars~~ the applicable Currency and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent ~~will~~ shall make the aggregate of such amounts available to the applicable Borrower not later than 5:30 p.m., London time (for a Borrowing denominated in any Foreign Currency), or 5:30 p.m., Charlotte time (for a Borrowing denominated in Dollars), in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, ~~the Borrower will~~ Xxxxxxxx shall give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice on behalf of the applicable Borrower (and each Borrower hereby irrevocably and unconditionally authorizes Xxxxxxxx to give any such notice from time to time in any form or substance as permitted under this Section 2.2) not later than ~~11:00 a.m.~~12:00 p.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be ~~irrevocable~~ irrevocable, shall be signed by an Authorized Officer of Xxxxxxxx and shall specify (i) the Borrower to which the Swingline Loan constituting such Borrowing will be made, (ii) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $~~500,000~~ 100,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (iiiii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender ~~will~~ shall make available to the Administrative Agent at in accordance with the applicable Payment ~~Office~~ Instructions an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent ~~will~~ shall make such amount available to the applicable Borrower no later than 2:00 p.m., Charlotte time, in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by Xxxxxxxx and the applicable Borrower to, cause a Borrowing of Revolving Loans by such Borrower to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, Xxxxxxxx and the applicable Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by Xxxxxxxx on behalf of the applicable Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate principal amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”~~) outstanding on the date such notice is given that the Swingline Lender requests to be repaid~~). Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) ~~will~~ shall make available to the Administrative Agent at in accordance with the applicable Payment ~~Office~~ Instructions an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent ~~will~~ shall make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the applicable Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to Xxxxxxxx or the applicable Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of Xxxxxxxx and the applicable Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ~~ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time)~~ Applicable Percentage of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) ~~will~~ shall make available to the Administrative Agent at in accordance with the applicable Payment ~~Office~~ Instructions an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent ~~will~~ shall make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the applicable Borrower in respect of a Swingline Loan, the Swingline Lender ~~will~~ shall pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, ~~including, without limitation,~~ including (i) any ~~set-off~~setoff, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, ~~the~~ any Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet ~~the~~ any minimum Borrowing amount specified inin Section 2.2(b), or (iv) the failure of any conditions set forth in Section 4.2 or elsewhere herein to be satisfied.

Appears in 1 contract

Samples: Credit Agreement (Crawford & Co)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of~~ Whenever the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order desires to make a Borrowing (other than ~~(w) Borrowings~~ continuations of ~~Swingline Loans, which shall be made~~ outstanding Loans pursuant to Section ~~2.2(d), (x~~2.9) ~~Borrowings for~~ under the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)Revolving Credit Facility, the Borrower will give the Administrative Agent written or telephonic notice ~~not later than~~ (confirmed immediately thereafter by telecopier or otherwise), prior to 11:00 a.m., ~~Charlotte~~ Nashville, Tennessee local time, at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one Business Day~~ prior to 11:00 a.m., Nashville, Tennessee local time on the day of each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall be appropriately completed to specify (1i) the aggregate principal ~~amount, Class~~ amount and ~~initial~~ Type of the Loans to be made pursuant to such ~~Borrowing~~Borrowing (and, ~~(2)~~ in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto), (ii) the proposed use of the proceeds of the Borrowing, and (3iii) the requested date of the Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing hereunder (y) in the case of Borrowings comprised of Base Rate ~~Loans~~ Loans, shall not be less than $1,000,000 orand, if greater, shall be in an integral multiple of $~~100,000~~ 500,000 in excess ~~thereof~~ thereof, and (~~or, if less,~~ z) in the ~~amount~~ case of ~~the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing~~ Borrowings comprised of LIBOR ~~Loans~~ Loans, shall not be less than $~~2,000,000 or~~1,000,000 and, if greater, shall be in an integral multiple of $~~1,000,000~~ 500,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans~~; and~~; (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month; and (iv) LIBOR Loans under the Revolving Credit Facility may not be outstanding under more than four (4) separate Interest Periods at any one time. (cb) ~~Not later than 1:00 p.m.~~Upon the receipt of a Notice of Borrowing, ~~Charlotte time~~the Administrative Agent will promptly notify each Lender with a Revolving Credit Commitment of the proposed Borrowing, on of such Lender's Pro Rata Share thereof and of the ~~requested Borrowing Date, each applicable~~ other matters specified in the Notice of Borrowing. Each such Lender will make the amount of its Pro Rata Share of such Borrowing available to the Administrative Agent at its office in Nashville, Tennessee referred to in Section 10.4, for the ~~Payment Office an amount~~account of the Borrower, in Dollars and in immediately available funds, ~~equal~~ prior to ~~the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~2:00 p.m., the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline LoanNashville, ~~the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte~~ Tennessee local time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the ~~Swingline Lender~~ Borrower's account at the Administrative Agent's office and in like funds as received by the Administrative Agent, ~~which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement~~ prior to ~~the contrary~~3:30 p.m., Nashville, Tennessee local time, on the ~~relevant~~ Borrowing Date. Unless the Administrative Agent has received, prior to 12:00 noon, Nashville, Tennessee local time, on any Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior written notice from ~~the Swingline Lender, each~~ a Lender ~~(other than the Swingline Lender)~~ that such Lender will not make available to the Administrative Agent at its Pro Rata Share of the ~~Payment Office an amount~~relevant Borrowing, ~~in Dollars and in immediately available funds, equal to~~ the Administrative Agent may assume that such Lender has made or will make its ~~respective participation. To the extent the Lenders have made~~ Pro Rata Share of such ~~amounts~~ Borrowing available to the Administrative Agent ~~as provided hereinabove~~on such Borrowing Date in accordance with subsection (b) above, and the Administrative Agent ~~will~~ may, in reliance upon such assumption, make ~~the aggregate of such amounts~~ a corresponding amount available to the ~~Swingline Lender in like funds as received by~~ Borrower on such Borrowing Date. If and to the ~~Administrative Agent. In the event any~~ extent that such Lender ~~fails to make~~ shall not have made such Pro Rata Share available to the Administrative Agent, and the Administrative Agent shall have made such corresponding amount available to the ~~amount of~~ Borrower, such Lender~~’s participation as provided in this Section 2.2(f)~~, on the ~~Swingline Lender shall be entitled~~ one hand, and the Borrower, on the other, severally agree to ~~recover such amount~~ pay to the Administrative Agent forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrower until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Administrative Agent, (i) if recovered from such Lender, at the Federal Funds ~~Rate for the first three Business Days~~ Rate, and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) if recovered from the ~~occurrence or continuance~~ Borrower, at the rate of interest applicable to Loans comprising such Borrowing, as determined under Section 2.6. If such Lender shall repay to the Administrative Agent such corresponding amount, such amount so repaid shall constitute such Lender's Loan as part of such Borrowing for purposes of this Agreement. The failure of any ~~Default or Event~~ Lender to make any Loan required to be made by it as part of ~~Default~~any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the respective Borrowing Date, ~~(iii)~~ but no Lender shall be responsible for the failure of any other Lender to make the ~~amount~~ Loan to be made by such other Lender as part of ~~such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in~~any Borrowing.

Appears in 1 contract

Samples: Credit Agreement (Ipayment Inc)

Borrowings. (a) ~~The Revolving Loans (each, together with~~ Each borrowing of a Loan other than the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Initial Loans shall be made ~~and maintained as LIBOR Market Index Rate Loans at all times. (b) In order~~ upon the Borrower’s irrevocable notice to ~~make a Borrowing (other than (w) Borrowings of Swingline Loans~~the Lender, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three Business Days prior to each Borrowing to be comprised of LIBOR Loans and one Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, may be given ~~with less advance notice than as specified hereinabove~~by telephone. Each such notice must be received by the Lender not later than 10:00 a.m. on the third Business Day (~~each, a “Notice of Borrowing”) shall be irrevocable, shall be given in~~ the ~~form of Exhibit B-1 and shall specify (1)~~ seventh Business Day if the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender Proceeds of the proposed ~~Borrowing~~Loans is $250,000,000 or more) prior to the requested Funding Date. Notwithstanding anything to the contrary contained herein: , but subject to the provisions of Section 9.02(d), any such telephonic notice may be given by a Responsible Officer of the Borrower or an individual who has been authorized in writing to do so by a Responsible Officer of the Borrower. Each such telephonic notice must be confirmed promptly by delivery to the Lender of a written Loan Notice, appropriately completed and signed by a Responsible Officer of the Borrower. Each borrowing of one or more Loans on a particular Funding Date shall have an aggregate Loan Amount at Maturity of $25,000,000 or more. Each Loan Notice (iwhether telephonic or written) shall specify (1) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount requested Funding Date of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the proposed Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day), (2) the Tranche to which each Loan is related, (3) the requested Proceeds for each Loan and (4) the expected Loan Amount at Maturity of each Loan to be borrowed. Not later than ~~1:00 p.m.~~the Business Day immediately following the day that the Borrower delivers a completed Loan Notice to the Lender, ~~Charlotte time,~~ the Lender shall calculate and notify the Borrower of the Loan Amount at Maturity applicable to such Proceeds for each Loan requested to be borrowed on the ~~requested Borrowing~~ related Funding Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (ei) ~~With respect to any outstanding Swingline~~ Upon satisfaction of the applicable conditions set forth in Section 4.01 (in the case of the Initial Loans) and Section 4.02 (in the case of all Loans), the ~~Swingline~~ Lender ~~may at any time (whether or not~~ shall advance an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the ~~amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding~~ Proceeds related to each Loan being made on the ~~date such notice is given that~~ applicable Funding Date either by (1) crediting the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf account of the Borrower ~~from~~ on the ~~Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss~~ books of the ~~amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding~~ Lender with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by advance or ~~on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share~~ (2) wire transfer of such ~~payment~~amount, in each case in accordance with instructions provided to (and reasonably acceptable to) the Lender by the Borrower. (gii) Notwithstanding ~~any provision~~ the preceding clause (i), in the case of ~~this Agreement~~ the Initial Loans, the entire Proceeds shall be netted against the purchase price of the Purchased DTV Shares and none of the Proceeds thereof will be distributed to the ~~contrary,~~ Borrower on the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified ininitial Funding Date.

Appears in 1 contract

Samples: Credit Agreement (Directv)

Borrowings. (a) The ~~Revolving~~ Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of ~~the~~ each Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall~~ , and (ii) no LIBOR Loan may be ~~made and maintained as LIBOR Market Index Rate Loans~~ borrowed at ~~all times~~any time prior to the third (3rd) Business Day after the Closing Date. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), ~~the~~ each Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ not later than 10:00 a.m., Charlotte time, on the same Business Day prior to each Borrowing ~~to be comprised~~ of Base Rate Loans; provided, however, that requests for the Borrowing of ~~Revolving~~ any Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as the times specified hereinabove. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Tranche 1 Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing ~~comprised of Base Rate Loans~~ shall not be less than $~~1,000,000~~ 3,000,000 or, if greater, an integral multiple of $~~100,000~~ 1,000,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Tranche 1 Commitments)~~, and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $2,000,000 or, if greater, an integral multiple of $1,000,000 in excess thereof~~; (ii) if the applicable Borrower shall have failed to designate the Type of Loans comprising a Borrowing, ~~the~~ such Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the applicable Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then ~~the~~ such Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Tranche 1 Lender will make available to the Administrative Agent at its office referred to in Section 11.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Tranche 1 Lender. To the extent ~~such~~ the Tranche 1 Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the applicable Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Everest Re Group LTD)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject~~ Subject to the terms and conditions of this Agreement, the Loans shall, at the option of the Borrower, be either Base Rate Loans or ~~LIBOR Loans (each~~SOFR Loans, ~~a “Type” of Loan)~~provided, ~~provided~~ however, that all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same ~~Type~~Type and Class. The Swingline Loans shall be made and maintained ~~as LIBOR Market Index Rate Loans at all times. (b)~~ in accordance with Section 2.08(a)(iii). In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section ~~2.2(d~~2.02(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section ~~2.2(e~~2.02(e), (y) Borrowings for the purpose of repaying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.05 and (z) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the Administrative Agent written notice not later than ~~11:00 a.m., Charlotte time~~1:00 p.m., three (3) Business Days prior to each Borrowing ~~to be comprised~~ of ~~LIBOR~~ SOFR Loans ~~and one Business Day prior to each~~ (or, in the case of (x) any Borrowing ~~to be comprised~~ of Base Rate Loans that are Term Loans, 11:00 a.m. on the Business Day of such Borrowing, or (y) any Borrowing of Base Rate Loans that are Revolving Loans, 2:00 p.m. on the Business Day of such Borrowing); provided, however, that ~~requests for~~ notwithstanding the ~~Borrowing of Revolving~~ foregoing, Loans ~~to be made~~ borrowed on the Closing Date may, at the ~~discretion~~ election of the ~~Administrative Agent~~Borrower, be ~~given with less advance~~ borrowed as SOFR Loans on written notice to the Administrative Agent no later than ~~as specified hereinabove~~1:00 p.m., (x) one (1) Business Day prior to the Closing Date in the case of Term Loans or (y) two (2) Business Days prior to the Closing Date in the case of Revolving Loans. Each such notice (each, a “Notice of Borrowing”) shall be irrevocable, shall be given in substantially the form of Exhibit B-1 and shall specify (1i) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2ii) in the case of a Borrowing of ~~LIBOR~~ SOFR Loans, the initial Interest Period to be applicable ~~thereto,~~ thereto and (3iii) the requested date of such Borrowing (the “Borrowing Date”), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Term Lender or Revolving Lender, as applicable, of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of ~~each~~ the Borrowing ~~comprised~~ of ~~Base Rate~~ the Initial Term Loans shall ~~not~~ be ~~less than $1,000,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less,~~ in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure), and~~ Initial Term Loan Commitments; (ii) the aggregate principal amount of each Borrowing (x) comprised of ~~LIBOR~~ Base Rate Loans shall ~~not~~ be ~~less than~~ in an amount equal to $~~2,000,000 or, if greater, an integral~~ 1,000,000 or a whole multiple of $500,000 in excess thereof, (y) comprised of Revolving Loans may not be more than the amount of the aggregate Unutilized Revolving Credit Commitments and (z) comprised of SOFR Loans shall be in an amount equal to $1,000,000 or a whole multiple of $500,000 in excess thereof; (iiiii) if the Borrower shall have failed to designate the Type of ~~Loans comprising a Borrowing~~Loans, ~~the Borrower~~ then it shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (~~iii~~iv) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of ~~LIBOR~~ SOFR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of ~~one month~~three months. (cb) ~~Not~~ In the case of each Borrowing of Loans, (other than Swingline Loans), promptly, and in any event not later than ~~1:00~~ 10:00 a.m. (or in the case of any Base Rate Loan requested on the same day, not later than 4:00 p.m.~~, Charlotte time,~~ ) on the requested Borrowing Date (which shall be the Closing Date, in the case of the Initial Term Loans), each ~~applicable~~ Lender will make available to the Administrative Agent at its Lending Office (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in ~~Dollars~~ Dollars, and in immediately available funds, equal to the amount of the Loan ~~or Loans~~ to be made by such Lender. ~~To the extent such Lenders have made such amounts available~~ Subject to the ~~Administrative Agent as provided hereinabove~~satisfaction or waiver of applicable conditions to lending hereunder, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section ~~2.3(a)~~ 2.03 and in like funds as received by the Administrative Agent. (dc) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline ~~Lender, if the Swingline~~ Lender ~~is not also the Administrative Agent)~~ written notice (by telecopy or electronic mail) not later than 11:00 ~~a.m., Charlotte time,~~ a.m. on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be irrevocable, shall be given in substantially the form of Exhibit ~~B-2, shall be irrevocable~~ B-2 and shall specify (i) the currency and principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $~~500,000~~ 250,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. ~~Not~~ Promptly, and in any event not later than ~~1:00 p.m., Charlotte time~~12:00 noon, on the requested Borrowing ~~Date,~~ Date the Swingline Lender will make available to the ~~Administrative Agent at the Payment Office~~ Borrower an amount, in ~~Dollars and in~~ immediately available ~~funds,~~ funds equal to the amount of the requested Swingline ~~Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower~~ Loan and in accordance with Section ~~2.3(a) and in like funds as received by the Administrative Agent~~2.03. (ed) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is ~~not also~~ different from the Swingline Lender) and each other Revolving Lender (on behalf of, and with a copy to, the Borrower), not later than ~~11:00 a.m.~~(x) 12:00 noon, ~~Charlotte time, one~~ on the Business Day prior to ~~the~~ a proposed Borrowing Date ~~therefor~~for Base Rate Loans or (y) 1:00 p.m., three (3) Business Days prior to a proposed Borrowing Date for SOFR Loans, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than ~~1:00 p.m., Charlotte time,~~ 2:00 p.m. on the requested Borrowing Date, each Revolving Lender (other than the Swingline Lender) will make available to the Administrative Agent at its Lending Office (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Revolving Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Lenders in the manner contemplated by Section 2.15(b). (fe) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to ~~Section 2.2(e~~subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower ~~as provided for hereinabove~~pursuant to Section 2.02(e), the Swingline Lender shall be deemed to have sold without recourse, representation or ~~warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender)~~warranty, and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time, whether or not the Revolving Credit Commitments are then in effect and if the Revolving Credit Commitments have ceased to be in effect, then pursuant to the Revolving Credit Commitments as in effect immediately prior to such cessation) of the unpaid amount thereof together with accrued interest ~~thereon~~thereon at the rate then payable on Swingline Loans that bear interest by reference to Section 2.08(a)(iii). Upon (x) one (1) Business Day’s prior notice for Base Rate Loans or (y) three (3) Business Days’ prior notice for SOFR Loans from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at its applicable Lending Office (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such ~~Lender~~Xxxxxx’s participation as provided in this ~~Section 2.2(f~~subsection (f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first ~~three~~ Business ~~Days~~ Day and thereafter at the applicable Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (gf) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to ~~Section 2.2(e~~subsection (e) above and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to ~~Section 2.2(f~~subsection (f) above shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, ~~including, without limitation,~~ including (i) any set-off, counterclaim, recoupment, defense or other right that such Revolving Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the ~~failure~~ condition (financial or otherwise) of any Credit Party and (iv) any other act or omission to act or delay of any kind of any Secured Party or any other Person or any other event or circumstance whatsoever, whether or not similar to any of the ~~amount~~ foregoing, that might, but for the provisions of ~~such Borrowing~~ this Section 2.02, constitute a legal or equitable discharge of any obligation of the Borrower or any Revolving ~~Loans to meet the minimum Borrowing amount specified in~~Lender hereunder.

Appears in 1 contract

Samples: Credit Agreement (Blue Bird Corp)

Borrowings. (ai) ~~The~~ Each request for borrowings hereunder shall be made by a Notice of Borrowing from the Borrower to the Agent, given not later than (A) 2:00 P.M. on the Business Day on which the proposed borrowing is requested to be made for Revolving Loans ~~(each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement,~~ that will be ~~either~~ Base Rate Loans ~~or LIBOR~~ and for Swing Loans and (~~each, a “Type” of Loan), provided~~ B) during normal business hours on the date that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., Charlotte time, is three Business Days prior to ~~each Borrowing to be comprised~~ the date of ~~LIBOR Loans and one Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for~~ the ~~Borrowing~~ requested borrowing of Revolving Loans to that will be ~~made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove~~Eurodollar Loans. Each ~~such notice (each,~~ request for borrowing made in a “Notice of ~~Borrowing”) shall be irrevocable,~~ Borrowing shall be given ~~in the form of Exhibit B-1 and shall specify~~ by telecopy, setting forth (1) the ~~aggregate principal amount, Class and initial Type~~ requested date of ~~the Loans to be made pursuant to~~ such ~~Borrowing~~borrowing, (2) in the ~~case~~ aggregate amount of such requested borrowing and whether it is for a ~~Borrowing of LIBOR Loans~~Revolving Loan or Swing Loan, ~~the initial Interest Period to be applicable thereto, and~~ (3) whether such Revolving Loans will be Base Rate Loans or Eurodollar Rate Loans, and if appropriate, the ~~requested Borrowing Date~~applicable Interest Period, (4) whether such Swing Loan will be a Base Rate Loan or LIBOR Index Loan (subject to Section 2.1(a)(ii)), (5) certification by the Borrower that it has complied in all respects with Section 5.3, all of which shall be ~~a Business Day~~specified in such manner as is necessary to comply with all limitations on Revolving Loans and Swing Loans outstanding hereunder and (6) the account at which such requested funds should be made available. ~~Upon its receipt of~~ Each request for borrowing made in a Notice of ~~Borrowing,~~ Borrowing shall be irrevocable by and binding on the ~~Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~Borrower. ~~Notwithstanding anything~~ The Borrower shall be entitled to ~~the contrary contained herein: (i) the aggregate~~ borrow Revolving Loans in a minimum principal amount of ~~each Borrowing comprised~~ $3,000,000 and integral multiples of ~~Base Rate Loans shall not be less than~~ $1,000,000 ~~or, if greater, an integral multiple of $100,000~~ in excess thereof (oror the remaining amount of the Revolving Credit Committed Amount, if less) and shall be entitled to borrow Base Rate Loans or Eurodollar Loans, or a combination thereof, as the Borrower may request; provided, that no more than six (6) Eurodollar Loans shall be outstanding hereunder at any one time; and provided, further, that Eurodollar Loans shall be in ~~the amount of the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate~~ a minimum principal amount of ~~each Borrowing comprised of LIBOR Loans shall not be less than~~ at least $~~2,000,000 or, if greater, an~~ 3,000,000 and integral ~~multiple~~ multiples of $1,000,000 in excess thereof; . Each Swing Loan shall be in a minimum principal amount of at least $100,000 and integral multiples of $100,000 in excess thereof. Revolving Loans and Swing Loans may be repaid and reborrowed in accordance with the provisions hereof. The Agent shall give to each Lender prompt notice (iibut in no event later than 3:00 P.M. on the date of the Agent's receipt of notice from the Borrower) if of each requested borrowing in a Notice of Borrowing by telecopy, telex or cable (other than any Notice of Borrowing which will be funded by the ~~Borrower shall have failed~~ Agent in accordance with subsection (d)(ii) below). No later than 4:00 P.M. on the date on which a Revolving Loan borrowing is requested to ~~designate~~ be made pursuant to the ~~Type~~ applicable Notice of ~~Loans comprising a~~ Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Lender will make available to the ~~Administrative~~ Agent at the ~~Payment Office an amount~~address of the Agent set forth on the signature pages hereto, ~~in Dollars and~~ in immediately available funds, ~~equal~~ its Revolving Credit Commitment Percentage of such borrowing requested to be made (unless such funding is to be made by the Agent in accordance with subsection (d)(ii) below). Unless the Agent shall have been notified by any Lender prior to the date of borrowing that such Lender does not intend to make available to the Agent its portion of the Revolving Loan borrowing to be made on such date, the Agent may assume that such Lender will make such amount available to the Agent as required above and the Agent may, in reliance upon such assumption, make available the amount of the ~~Loan or Loans~~ borrowing to be ~~made~~ provided by such Lender. To Upon fulfillment of the ~~extent~~ conditions set forth in Section 5.3 for such ~~Lenders have made such amounts available to the Administrative Agent as provided hereinabove~~borrowing, the ~~Administrative~~ Agent will make ~~the aggregate of~~ such ~~amounts~~ funds available to the Borrower ~~in accordance with Section 2.3(a) and in like funds as received~~ at the account specified by the ~~Administrative Agent~~Borrower in such Notice of Borrowing. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) If the ~~requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make~~ amounts of Revolving Loans described in subsection (d)(i) of this Section 2.1 are not in fact made available to the ~~Administrative~~ Agent at by a Lender (such Lender being hereinafter referred to as a "Defaulting Lender") and the ~~Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender~~ Agent has made such amount available to the ~~Administrative Agent as provided hereinabove~~Borrower, the ~~Administrative~~ Agent ~~will make~~ shall be entitled to recover such corresponding amount on demand from such Defaulting Lender. If such Defaulting Lender does not pay such corresponding amount forthwith upon the Agent's demand therefor, the Agent shall promptly notify the Borrower and the Borrower shall immediately (but in no event later than five Business Days after such demand) pay such corresponding amount to the Agent. The Agent shall also be entitled to recover from such Defaulting Lender and the Borrower, (A) interest on such corresponding amount in respect of each day from the date such corresponding amount was made available by the Agent to the Borrower to the date such corresponding amount is recovered by the Agent, at a rate per annum equal to either (1) if paid by such Defaulting Lender, the overnight Federal Funds Rate or (2) if paid by the Borrower, the then applicable rate of interest, calculated in accordance with Section ~~2.3(a~~4.1, plus (B) in each case, an amount equal to any reasonable costs (including reasonable legal expenses) and losses incurred as a result of the failure of such Defaulting Lender to provide such amount as provided in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which this Credit Agreement. Nothing herein shall be deemed to be relieve any Lender from its obligation to fulfill its commitments hereunder or to prejudice any rights which the Borrower may have against any Lender as a ~~Notice~~ result of ~~Borrowing given~~ any default by such Lender hereunder, including, without limitation, the right of the Borrower to seek reimbursement from any Defaulting Lender for any amounts paid by the ~~Borrower~~Borrower under clause (B) ~~requesting the Lenders~~ above on account of such Defaulting Lender's default. (iii) The failure of any Lender to make the Revolving ~~Loans (which shall~~ Loan to be made ~~initially~~ by it as ~~Base Rate Loans) on such Borrowing Date in an aggregate amount equal~~ part of any borrowing shall not relieve any other Lender of its obligation, if any, hereunder to ~~the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding~~ make its Revolving Loan on the date of such ~~notice is given that~~ borrowing, but no Lender shall be responsible for the ~~Swingline~~ failure of any other Lender ~~requests~~ to ~~be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will~~ make ~~available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of~~ the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline other Lender ~~in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary,~~ on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion date of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b)borrowing. (fiv) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Each Lender shall be entitled to ~~recover such amount~~ earn interest at the then applicable rate of interest, calculated in accordance with Article IV, on ~~demand from such Lender, together with interest thereon for each day~~ outstanding Revolving Loans which it has funded to the Agent from the date such ~~amount is required to be made available for the account of the Swingline~~ Lender ~~until~~ funded such Revolving Loan to, but excluding, the date on which such ~~amount~~ Lender is ~~made available~~ repaid with respect to ~~the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to~~ such Revolving ~~Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline~~ Loan~~, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment~~. (gv) ~~Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans~~ A request for ~~the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase~~ a ~~participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall~~ borrowing may not be ~~affected~~ made by ~~any circumstance or event whatsoever~~telephone, ~~including, without limitation, (i) any set-off, counterclaim, recoupment, defense or~~ unless no other ~~right that such Lender may have against~~ means are available at the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount time of such ~~Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in~~request.

Appears in 1 contract

Samples: Senior Secured Credit Facility (TransMontaigne Partners L.P.)

Borrowings. (a) The Tranche A Term Loans, the Tranche B Term Loans and Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that (i) all ~~Revolving~~ Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type, and (ii) no LIBOR Loans may be borrowed at any time prior to the third (3rd) Business Day after the Closing Date. The Swingline Loans shall be made and maintained as ~~LIBOR Market Index~~ Base Rate Loans at all times. (b) In order to make a Borrowing (other than (wx) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (xy) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), and (yz) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section ~~2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5~~2.11), the Borrower will give the Administrative Agent written notice not later than 11:00 a.m., ~~Charlotte~~ Charlotte, North Carolina time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of the Term Loans and any Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “Notice of Borrowing”) ~~shall be irrevocable,~~ shall be given in the form of Exhibit B-1 and shall specify (1) the aggregate principal amount, Class and initial Type of the Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested Borrowing Date, which shall be a Business Day. Once given, a Notice of Borrowing may not be revoked by the Borrower except upon payment of any amounts required under Section 2.18 to be paid as a consequence of such revocation. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed ~~Borrowing~~Borrowing by facsimile transmission. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of the Borrowing of Tranche A Term Loans shall be in the amount of the aggregate Tranche A Term Loan Commitments; (ii) the aggregate principal amount of the Borrowing of Tranche B Term Loans shall be in the amount of the aggregate Tranche B Term Loan Commitments; (iii) the aggregate principal amount of each Borrowing comprised of Base Rate Loans shall not be less than $~~1,000,000~~ 500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, in the case of a Borrowing of Revolving Loans, if less, in the amount of the aggregate Unutilized Revolving Credit Commitments less the ~~Aggregate Credit Exposure~~aggregate outstanding principal amount of Swingline Loans), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 500,000 in excess thereof; (iiiv) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (~~iii~~v) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than ~~1:00~~ 2:00 p.m., ~~Charlotte~~ Charlotte, North Carolina time, on the requested Borrowing Date (which shall be the Closing Date, in the case of the Term Loans), each applicable Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Loan or Loans to be made by such Lender. To the extent such Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline ~~Loan~~Loan (other than borrowings pursuant to any loan sweep product or other cash management arrangement in effect between the Borrower and the Swingline Lender, which shall be effected as provided thereunder), the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., ~~Charlotte~~ Charlotte, North Carolina time, on the ~~date~~ Business Day of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit ~~B-2, shall be irrevocable~~ B-2 and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $~~500,000~~ 200,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Once given, a Notice of Swingline Borrowing may not be revoked by the Borrower except upon payment of any amounts required under Section 2.18 to be paid as a consequence of such revocation. Not later than 1:00 p.m., ~~Charlotte~~ Charlotte, North Carolina time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute ~~discretion~~discretion (and shall, within seven (7) days after any Borrowing of Swingline Loans causes the aggregate outstanding principal amount thereof to exceed $2,000,000), and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Revolving Credit Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., ~~Charlotte~~ Charlotte, North Carolina time, one (1) Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Revolving Credit Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than ~~1:00~~ 2:00 p.m., ~~Charlotte~~ Charlotte, North Carolina time, on the requested Borrowing Date, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Revolving Credit Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Revolving Credit Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to ~~Section 2.2(e~~subsection (e) above in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Revolving Credit Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Revolving Credit Commitment bears to the aggregate Revolving Credit Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one (1) Business Day’s prior notice from the Swingline Lender, each Revolving Credit Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Revolving Credit Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Revolving Credit Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three (3) Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Revolving Credit Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Revolving Credit Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) any adverse change in the ~~failure~~ business, operations, properties, assets, condition (financial or otherwise) or prospects of the ~~amount~~ Borrower or any of ~~such Borrowing~~ its Subsidiaries, or (iv) any breach of ~~Revolving Loans to meet the minimum Borrowing amount specified in~~this Agreement by any party hereto.

Appears in 1 contract

Samples: Credit Agreement (Symmetry Medical Inc.)

Borrowings. (a) The Revolving Loans ~~(each, together with the Swingline Loans, a “Class” of Loan)~~ shall, at the option of the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR ~~Loans (each, a “Type” of Loan)~~Loans, provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type~~. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times~~. (b) In order to make a Borrowing (other than ~~(w)~~ Borrowings involving continuations or Conversions of ~~Swingline Loans,~~ outstanding Revolving Loans which shall be made pursuant to ~~Section 2.2(d~~SECTION 5.4), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding Loans, which shall be made pursuant to Section 2.11 or (z) Borrowings for the purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5), the Borrower an Authorized Officer will give the Administrative Agent ~~written~~ telephonic notice not later than 11:00 a.m., Charlotte time, three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and ~~one~~ on the Business Day ~~prior to~~ of each Borrowing to be comprised of Base Rate Loans, which notice shall be irrevocable. The Authorized Officer shall provide the Administrative Agent written confirmation of each such telephonic notice but failure to provide such confirmation shall not affect the validity of such telephonic notice; provided, however, that requests for the Borrowing of any Revolving Loans to be made on the ~~Closing~~ Effective Date may, at the discretion of the Administrative Agent, be given ~~with less advance notice~~ later than as the times specified hereinabove. Each such written notice (each, a “"Notice of Borrowing”") ~~shall be irrevocable,~~ shall be given in the form of ~~Exhibit~~ EXHIBIT B-1 and each Notice of Borrowing shall specify (1) the aggregate principal ~~amount, Class~~ amount and initial Type of the Revolving Loans to be made pursuant to such Borrowing, (2) in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, and (3) the requested date of such Borrowing (the "Borrowing Date"), which shall be a Business Day. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each ~~applicable~~ Revolving Lender of the proposed Borrowing. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing comprised of Base Rate Loans other than a Borrowing (x) solely to repay a then outstanding Swing Line Loan in accordance with SECTION 3.8(d), which may be in the amount of such Swing Line Loan or (y) solely to satisfy any Reimbursement Obligation under SECTION 4.4, which may be in the amount of such Reimbursement Obligation, shall not be less than $~~1,000,000~~ 500,000 or, if greater, an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the aggregate ~~Commitments less the Aggregate Credit Exposure~~Unutilized Commitments), and the aggregate principal amount of each Borrowing comprised of LIBOR Loans shall not be less than $~~2,000,000~~ 1,000,000 or, if greater, an integral multiple of $~~1,000,000~~ 100,000 in excess thereof; (ii) if the Borrower shall have failed to designate the Type of Revolving Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; and (iii) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one month. (c) Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each ~~applicable~~ Revolving Lender will make available to the Administrative Agent at its office referred to in SECTION 14.5 (or at such other location as the ~~Payment Office~~ Administrative Agent may designate) an amount, in Dollars and in immediately available ~~funds,~~ funds equal to the amount of the Revolving Loan ~~or Loans~~ to be made by such Revolving Lender. To the extent ~~such~~ the Revolving Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Borrower in accordance with ~~Section 2.3(a~~SECTION 3,3(a) and in like funds as received by the Administrative Agent. (d) In order to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, the Swingline Lender will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the requested Swingline Loan. To the extent the Swingline Lender has made such amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make such amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing Date in an aggregate amount equal to the amount of such Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date such notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, Revolving Loans are not made pursuant to Section 2.2(e) in an amount sufficient to repay any amounts owed to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount on demand from such Lender, together with interest thereon for each day from the date such amount is required to be made available for the account of the Swingline Lender until the date such amount is made available to the Swingline Lender at the Federal Funds Rate for the first three Business Days and thereafter at the Adjusted Base Rate applicable to Revolving Loans. Promptly following its receipt of any payment by or on behalf of the Borrower in respect of a Swingline Loan, the Swingline Lender will pay to each Lender that has acquired a participation therein such Lender’s ratable share of such payment. (g) Notwithstanding any provision of this Agreement to the contrary, the obligation of each Lender (other than the Swingline Lender) to make Revolving Loans for the purpose of repaying any Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f) shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person for any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii) the failure of the amount of such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in

Appears in 1 contract

Samples: Credit Agreement (Radiation Therapy Services Inc)

Borrowings. (a) ~~The Revolving Loans (each, together with the Swingline Loans, a “Class” of Loan) shall, at the option of~~ Whenever the Borrower and subject to the terms and conditions of this Agreement, be either Base Rate Loans or LIBOR Loans (each, a “Type” of Loan), provided that all Revolving Loans comprising the same Borrowing shall, unless otherwise specifically provided herein, be of the same Type. The Swingline Loans shall be made and maintained as LIBOR Market Index Rate Loans at all times. (b) In order desires to make a Borrowing (other than (w) Borrowings of Swingline Loans, which shall be made pursuant to Section 2.2(d), (x) Borrowings for the purpose of repaying Refunded Swingline Loans, which shall be made pursuant to Section 2.2(e), (y) Borrowings involving continuations or conversions of outstanding ~~Loans, which shall be made~~ Loans pursuant to Section ~~2.11 or (z~~2.9) ~~Borrowings for~~ under the ~~purpose of paying unpaid Reimbursement Obligations, which shall be made pursuant to Section 3.5)~~Revolving Credit/Term Facility, the Borrower will give the ~~Administrative~~ Agent written notice ~~not later than~~ (by telecopier or otherwise), prior to 11:00 a.m., Charlotte time, at least three (3) Business Days prior to each Borrowing to be comprised of LIBOR Loans and at least one (1) Business Day prior to each Borrowing to be comprised of Base Rate Loans; provided, however, that requests for the Borrowing of Revolving Loans to be made on the Closing Date may, at the discretion of the Administrative Agent, be given with less advance notice than as specified hereinabove. Each such notice (each, a “"Notice of Borrowing”") shall be irrevocable, shall be given in the form of Exhibit B-1 and shall be appropriately completed to specify (1i) the aggregate principal ~~amount, Class~~ amount and ~~initial~~ Type of the Loans to be made pursuant to such ~~Borrowing~~Borrowing (and, ~~(2)~~ in the case of a Borrowing of LIBOR Loans, the initial Interest Period to be applicable thereto, ) and (3ii) the requested date of the Borrowing (the "Borrowing Date"), which shall be a Business Day~~. Upon its receipt of a Notice of Borrowing, the Administrative Agent will promptly notify each applicable Lender of the proposed Borrowing~~. Notwithstanding anything to the contrary contained herein: (i) the aggregate principal amount of each Borrowing hereunder (y) in the case of Borrowings comprised of Base Rate ~~Loans~~ Loans, shall not be less than $~~1,000,000 or~~500,000 and, if greater, shall be in an integral multiple of $100,000 in excess ~~thereof~~ thereof, and (~~or, if less,~~ z) in the ~~amount~~ case of ~~the aggregate Commitments less the Aggregate Credit Exposure), and the aggregate principal amount of each Borrowing~~ Borrowings comprised of LIBOR ~~Loans~~ Loans, shall not be less than $~~2,000,000 or~~3,000,000 and, if greater, shall be in an integral multiple of $1,000,000 in excess thereof; ; (ii) the aggregate principal amount of all Borrowings under the Revolving Credit/Term Facility, the proceeds of which are utilized to finance any single Permitted Acquisition, in part or in whole, shall not be more than $20,000,000, without the prior written consent of the Required Lenders; (iii) no Revolving Credit/Term Loans may be incurred to the extent that, immediately after giving effect thereto, the aggregate original principal amount of all Revolving Credit/Term Loans the proceeds of which were utilized to finance Permitted Acquisitions during any single fiscal year, in part or in whole, shall exceed $75,000,000, without the prior written consent of the Required Lenders; (iv) if the Borrower shall have failed to designate the Type of Loans comprising a Borrowing, the Borrower shall be deemed to have requested a Borrowing comprised of Base Rate Loans; ~~and~~ (~~iii~~v) if the Borrower shall have failed to select the duration of the Interest Period to be applicable to any Borrowing of LIBOR Loans, then the Borrower shall be deemed to have selected an Interest Period with a duration of one (1) month; and (vi) LIBOR Loans under the Revolving Credit/Term Facility may not be outstanding under more than five (5) separate Interest Periods at any one time. (cb) ~~Not later than 1:00 p.m.~~Upon the receipt of a Notice of Borrowing, ~~Charlotte time~~the Agent will promptly notify each Lender with a Revolving Credit/Term Commitment of the proposed Borrowing, on of such Lender's Pro Rata Share thereof and of the ~~requested Borrowing Date, each applicable~~ other matters specified in the Notice of Borrowing. Each such Lender will make the amount of its Pro Rata Share of such Borrowing available to the ~~Administrative~~ Agent at its office referred to in SECTION 10.4, for the ~~Payment Office an amount~~account of the Borrower, in Dollars and in immediately available funds, ~~equal~~ prior to 12:00 noon, Charlotte time, on the ~~amount of the Loan or Loans to be made by such Lender~~Borrowing Date. To the extent ~~such~~ the relevant Lenders have made such amounts available to the ~~Administrative~~ Agent as provided hereinabove, the ~~Administrative~~ Agent will make the aggregate of such amounts available to the ~~Borrower in accordance with Section 2.3(a)~~ Borrower's account at the Agent's office and in like funds as received by the ~~Administrative~~ Agent~~. (d) In order~~ , prior to make a Borrowing of a Swingline Loan, the Borrower will give the Administrative Agent (and the Swingline Lender, if the Swingline Lender is not also the Administrative Agent) written notice not later than 11:00 a.m., Charlotte time, on the date of such Borrowing. Each such notice (each, a “Notice of Swingline Borrowing”) shall be given in the form of Exhibit B-2, shall be irrevocable and shall specify (i) the principal amount of the Swingline Loan to be made pursuant to such Borrowing (which shall not be less than $500,000 and, if greater, shall be in an integral multiple of $100,000 in excess thereof (or, if less, in the amount of the Unutilized Swingline Commitment)) and (ii) the requested Borrowing Date, which shall be a Business Day. Not later than 1:00 3:30 p.m., Charlotte time, on the ~~requested~~ Borrowing Date. (c) Unless the Agent has received, prior to 12:00 noon, Charlotte time, on any Borrowing Date, ~~the Swingline~~ written notice from a Lender that such Lender will not make available to the ~~Administrative~~ Agent ~~at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount~~ its Pro Rata Share of the ~~requested Swingline Loan. To~~ relevant Borrowing, the ~~extent the Swingline~~ Agent may assume that such Lender has made its Pro Rata Share of such ~~amount~~ Borrowing available to the ~~Administrative~~ Agent ~~as provided hereinabove~~on such Borrowing Date in accordance with subsection (B) above, and the ~~Administrative~~ Agent ~~will~~ may, in reliance upon such assumption, make ~~such~~ a corresponding amount available to the Borrower in accordance with Section 2.3(a) and in like funds as received by the Administrative Agent. (e) With respect to any outstanding Swingline Loans, the Swingline Lender may at any time (whether or not an Event of Default has occurred and is continuing) in its sole and absolute discretion, and is hereby authorized and empowered by the Borrower to, cause a Borrowing of Revolving Loans to be made for the purpose of repaying such Swingline Loans by delivering to the Administrative Agent (if the Administrative Agent is not also the Swingline Lender) and each other Lender (on behalf of, and with a copy to, the Borrower), not later than 11:00 a.m., Charlotte time, one Business Day prior to the proposed Borrowing Date therefor, a notice (which shall be deemed to be a Notice of Borrowing given by the Borrower) requesting the Lenders to make Revolving Loans (which shall be made initially as Base Rate Loans) on such Borrowing ~~Date in an aggregate amount equal~~ Date. If and to the ~~amount of~~ extent that such ~~Swingline Loans (the “Refunded Swingline Loans”) outstanding on the date~~ Lender shall not have made such ~~notice is given that the Swingline Lender requests to be repaid. Not later than 1:00 p.m., Charlotte time, on the requested Borrowing Date, each Lender (other than the Swingline Lender) will make~~ Pro Rata Share available to the ~~Administrative~~ Agent, and the Agent ~~at the Payment Office an amount, in Dollars and in immediately available funds, equal to the amount of the Revolving Loan to be made by such Lender. To the extent the Lenders~~ shall have made such ~~amounts~~ corresponding amount available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent, which shall apply such amounts in repayment of the Refunded Swingline Loans. Notwithstanding any provision of this Agreement to the contrary, on the relevant Borrowing Date, the Refunded Swingline Loans (including the Swingline Lender’s ratable share thereof, in its capacity as a Lender) shall be deemed to be repaid with the proceeds of the Revolving Loans made as provided above (including a Revolving Loan deemed to have been made by the Swingline Lender), and such Refunded Swingline Loans deemed to be so repaid shall no longer be outstanding as Swingline Loans but shall be outstanding as Revolving Loans. If any portion of any such amount repaid (or deemed to be repaid) to the Swingline Lender shall be recovered by or on behalf of the Borrower from the Swingline Lender in any bankruptcy, insolvency or similar proceeding or otherwise, the loss of the amount so recovered shall be shared ratably among all the Lenders in the manner contemplated by Section 2.15(b). (f) If, as a result of any bankruptcy, insolvency or similar proceeding with respect to the Borrower, ~~Revolving Loans are not made pursuant~~ such Lender, on the one hand, and the Borrower, on the other, severally agree to ~~Section 2.2(e) in an amount sufficient to repay any amounts owed~~ pay to the Swingline Lender in respect of any outstanding Swingline Loans, or if the Swingline Lender is otherwise precluded for any reason from giving a notice on behalf of the Borrower as provided for hereinabove, the Swingline Lender shall be deemed to have sold without recourse, representation or warranty (except for the absence of Liens thereon created, incurred or suffered to exist by, through or under the Swingline Lender), and each Lender shall be deemed to have purchased and hereby agrees to purchase, a participation in such outstanding Swingline Loans in an amount equal to its ratable share (based on the proportion that its Commitment bears to the aggregate Commitments at such time) of the unpaid amount thereof together with accrued interest thereon. Upon one Business Day’s prior notice from the Swingline Lender, each Lender (other than the Swingline Lender) will make available to the Administrative Agent at the Payment Office an amount, in Dollars and in immediately available funds, equal to its respective participation. To the extent the Lenders have made such amounts available to the Administrative Agent as provided hereinabove, the Administrative Agent will make the aggregate of such amounts available to the Swingline Lender in like funds as received by the Administrative Agent. In the event any such Lender fails to make available to the Administrative Agent the amount of such Lender’s participation as provided in this Section 2.2(f), the Swingline Lender shall be entitled to recover such amount forthwith on demand ~~from~~ such ~~Lender~~corresponding amount, together with interest thereon for each day from the date such amount is ~~required to be~~ made available ~~for~~ to the ~~account of the Swingline Lender~~ Borrower until the date such amount is ~~made available~~ repaid to the ~~Swingline Lender~~ Agent, (i) if recovered from such Lender, at the Federal Funds ~~Rate for~~ Rate, and (ii) if recovered from the ~~first three Business Days and thereafter~~ Borrower, at the ~~Adjusted Base Rate~~ rate of interest applicable to ~~Revolving Loans~~Loans comprising such Borrowing, as determined under SECTION 2.6. ~~Promptly following its receipt of any payment by or on behalf of~~ If such Lender shall repay to the ~~Borrower in respect of a Swingline Loan~~Agent such corresponding amount, ~~the Swingline Lender will pay to each Lender that has acquired a participation therein~~ such amount so repaid shall constitute such Lender~~’s ratable share~~ 's Loan as part of such ~~payment~~Borrowing for purposes of this Agreement. (gd) ~~Notwithstanding~~ The failure of any ~~provision~~ Lender to make any Loan required to be made by it as part of ~~this Agreement~~ any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the ~~contrary, the obligation of each~~ respective Borrowing Date or relieve any Lender (~~other than~~ including the ~~Swingline Lender)~~ Lender that failed to make ~~Revolving Loans for the purpose~~ such amount available) of ~~repaying~~ its obligation, if any, hereunder to make its Pro Rata Share of any ~~Refunded Swingline Loans pursuant to Section 2.2(e) and each such Lender’s obligation to purchase a participation in any unpaid Swingline Loans pursuant to Section 2.2(f)~~ subsequent Borrowing available, but no Lender shall be absolute and unconditional and shall not be affected by any circumstance or event whatsoever, including, without limitation, (i) any set-off, counterclaim, recoupment, defense or other right that such Lender may have against the Swingline Lender, the Administrative Agent, the Borrower or any other Person responsible for ~~any reason whatsoever, (ii) the occurrence or continuance of any Default or Event of Default, (iii)~~ the failure of any other Lender to make the ~~amount~~ Loan to be made by such other Lender as part of ~~such Borrowing of Revolving Loans to meet the minimum Borrowing amount specified in~~any Borrowing.

Appears in 1 contract

Samples: Loan Agreement (Renal Treatment Centers Inc /De/)

Common use of Borrowings Clause in Contracts